Petition for a Writ of Certiorari — Stanley v. Taylor

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AUG 23 1972

MICHAEL RODSK, JR..CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1972

No. 2-306

MONTY M. STANLEY,

Petitioner,

MARJORIE TAYLOR,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS

FOURTH DISTRICT

OP SEL EAE GREG oF Set ST OA LALE ES SOO IE

JACK H. OLENDER, Esq.

910 — 17th Street, N.W.

Washington, D.C. 20006,

LAWRIE Ha

Of Counsel,

Thomas F. Londrigan, Esq.

Londrigan and Potter

1227 South Seventh Street

Post Office Box 399

Springfield, Illinois 62705

Attorneys for Petitioner

THE CASILLAS PRESS, INC.—1717 K Street, N. W.—Washington, 0. C.-223-1220

» adie

Cte ie te ai aieate ies

INDEX

OPINION BELOW .

JURISDICTION .

QUESTIONS PRESENTED .

CONSTITUTIONAL PROVISIONS AND eaiines

INVOLVED

STATEMENT .

MANNER IN WHICH FEDERAL —

RAISED ae ie

ARGUMENT .

THE RIGHT OF CIVIL TRIAL BY JURY

IS A FUNDAMENTAL RIGHT INCORPO-

RATED WITHIN THE MEANING OF DUE

PROCESS AS APPLIED TO THE STATES

THROUGH THE FOURTEENTH AMEND-

MENT

A STATE JUDICIARY CANNOT ARBI-

TRARILY DENY ITS CITIZENS A FUNDA-

MENTAL RIGHT WITHOUT VIOLATING THE

DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT .

CONCLUSION

APPENDIX

OPINION OF THE STATE OF ILLINOIS

APPELLATE COURT, FOURTH DISTRICT .

A-1

(ii)

Table of Cases

Adamson v. California,

332 US. 46 (1947)

American Railway Exp. Co. v. Kentucky,

273 US. 269 (1940) . rte

Beck v. Washington,

369 US. 541 (1962) .

Board of Regents v. Roth,

No. 71-162. US.

(decided June 29, 1972) . .

Chicago B.& Q. R. Co. v. Chicago,

166 US. 226 (1897) .

Duncan vy. Louisiana,

391 US. 145 (1968) .

Fiske v. Kansas,

274 US. 380 (1927) .

Galloway v. United States,

319 US. 372 ( a,

Gideon v. Wainwright,

372 US. 355 (1963) .

In Re Oliver,

333 US. 257 (1948) .

Klopfer v. North Carolina,

386 US. 213 (1967) .

Malloy v. Hogan,

378 US. 1 (1964) .

Mapp v. Ohio,

367 US. 643 (1961) .

23, 32

23, 25, 28

25, 28

et SEES

Pg tee ee

pa ee a Eten a”

(iii)

Mirich v. Forchner Contracting Co.,

312 Ill. 343 (1964)

Palko v. Connecticut,

302 US. 319 (1937) .

Pointer v. Texas,

280 U.S. 400 (1964) .

Roberts v. New York,

295 US. 264 (1935) .

Twining v. New Jersey,

211 US. 78 (1908)

Washington v. Texas,

388 US. 14 (1967)

Williams v. Florida,

399 US. 78 (1970)

Miscellaneous

Ratification of the Constitution of the US.,

State of New York .

Ratification of the Constitution of the US..,

State of Virginia .

Seventh Amendment, Constitution of the

United States .

The Yale Law Journal, Vol. 64, Feb., 1956,

No. 4, Jury Trial and Mr. Justice Black,

by Leon Green ee

Declaration of Independence (1776) .

Federalist No. 83

3 Writings of Thomas Jefferson

(Washington ed.) 71

nar ns ag cin a a aa Os

genetics

PAE TERN

pets

ae oe

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

No.

MONTY M. STANLEY,

Petitioner,

MARJORIE TAYLOR,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE APPELLATE COURT OF ILLINOIS

FOURTH DISTRICT

a) THIS CASE IS REPORTED IN 4 Ii. App. 3d 98,

278 N.E. 2d 824, and said Opinion is reprinted in the Ap-

pendix hereto.

b) GROUNDS FOR JURISDICTION:

i) The date of judgment: May 15, 1970.

ii) Rehearing denied: March 7, 1972.

iii) Petition for Leave to Appeal denied: May 25,

1972. Stay of mandate was granted by the Illinois Su-

preme Court to prepare this Petition for Writ of Certiorari

on June 19, 1972.

iv) Statutory provisions conferring jurisdiction:

$1257(3) of Title 28, United States Code.

c) QUESTIONS PRESENTED FOR REVIEW:

1. Is civil trial by jury as provided in the United

States and Illinois Constitutions a fundamental right pro-

tected against arbitrary abridgement by a State Judiciary?

2. Is an arbitrary decision of a State Appellate

Court regarding the fundamental right of civil trial by jury

a denial of due process and equal protection of the laws

as applied to the States through the Fourteenth Amend-

ment?

d) THE CONSTITUTIONAL PROVISIONS, STAT-

UTES, RULES AND REGULATIONS APPLICABLE:

Seventh Amendment to the United Statey-Constitution:

“In Suits at common law, where the value

in controversy shall exceed twenty dollars,

the right of trial by jury shall be preserved,

and no fact tried by a jury shall be other-

wise reexamined in any Court of the United

States, than according to the rules of the

common law.”

Fourteenth Amendment to the United States Constitu-

tion, Section 1:

“Section 1: All persons born or natural-

ized in the United States, and subject to the

— ,

jurisdiction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.”

e) STATEMENT OF THE CASE:

This was an action for professional slander based upon

the following statements spoken in the presence of stud-

ents and teachers:

“] think you are plain stupid, because you

are unfit to be a principal of this school or

any other school. You are not qualified.

You are a disgrace to the profession.

“You are just like that old Lee Harvey

Oswald that shot and killed President Ken-

nedy and that Jack Ruby who shot and

killed him in Dallas; it is peopie like you

who do what they did.”

The defendant was a teacher and spoke these words

about the plaintiff, a school principal. Similar accusa-

tions were made both before and after the alleged slander

and resulted in termination of plaintiff's employment as

principal. At the time of termination, the defendant’s

attorney also acted as President of the Board of Educa-

tion. The plaintiff was never again hired as a principal

or supervisor in any school system.

The case was submitted to a jury in the defendant's

county of residence and was tried by the defendant's same

family attorney who acted as President of the Board of

Education. A verdict for $75,775.00 was returned and

judgment entered thereon. The Appellate Court of this

State, 4 Ill. App. 2d 98, 278 N.E. 2d 824 (4th District),

reversed without remandment and concluded:

“This Court has participated in reiterat-

ing what is sometimes described as the com-

mon law view, that, as a general rule, both

written and spoken words falsely uttered

about a person in the presence of other are

slander per se: (1) If they impute to the

person spoken of an unfitness to perform

the duties of an office or employment; or

(2) if they prejudice the person spoken of

in his profession or trade (WHITBY v. ASSOCI-

ATES DISCOUNT CORP., 59 Ill. App. 2d 337;

33A I.L.P., Slander and Libel, $21, p. 33).

Based upon these criteria it is the conten-

tion of plaintiff that the utterances here

were slander per se, permitting malice and

damages to be implied, in that the ‘first ut-

terance” falsely accused him of unfitness to

perform his duties as principal, while the

‘Oswald-Ruby utterances’ were ‘spoken in

aggravation of the words challenging his pro-

fessional competency’ and tended to preju-

dice him in his profession. In our view,

this approach is not only too simplistic,

but is incorrect.

“In our opinion the utterances under con-

sideration in this case, as shown by the record,

S .

do not qualify as slander per se. Accordingly,

the trial court should have entered judgment

for defendant notwithstanding the verdict pur-

suant to defendant’s motion.” (Opinion, pp.

8-9, 15)

f) THE MANNER IN WHICH FEDERAL QUES-

TIONS WERE RAISED:

The first stage in the proceedings in which constitu-

tional questions arose was as a result of the action of the

Appellate Court in reversing without remandment the judg-

ment of the trial court based upon the jury verdict.

In a Petition for Rehearing filed in the Appellate Court,

plaintiff pointed out that its Opinion denied his constitu-

tional right to a trial by jury.

“This decision . . . denies plaintiff a hear-

ing and therefore denies due process and

equal protection of the laws insured under

the Constitution of the United States and

State of Illinois, and denies plaintiff the

right of trial by jury as insured by Section

13 of the State of Illinois and the 7th

Amendment to the United States Constitu-

tion as applied to the States through the due

process clause of the 14th Amendment of

the United States Constitution.” (Petition

for Rehearing, p. 16)

ARGUMENT

THE RIGHT OF CIVIL TRIAL BY JURY IS A

FUNDAMENTAL RIGHT INCORPORATED WITHIN

THE MEANING OF DUE PROCESS AS APPLIED

TO THE STATES THROUGH THE FOURTEENTH

AMENDMENT.

In reaching its desired result, the Illinois Appellate Court

Opinion completely omitted evidentiary facts establishing

malice, damages and causation. An example of material con-

tained in the record, but omitted in the Opinion, is docu-

mented below:

1) Actual Malice:

Prior to 1963 Virginia Community School District No.

64 had never employed a principal directly responsible

for the supervision of teachers in either the High School

or Grade School. In the opinion of the County Superin-

tendent of Schools this type of supervision was needed.

(R. 355-356) The defendant, Marjorie Taylor, never at-

tained tenure in any school system before returning to

her home in Virginia, Illinows, in 1954. She never worked

under the supervision of a principal for longer than a

single year. (R. 271-272) At the time Monty Stanley

came to Virginia to accept the position of principal in the

Virginia School System, he accepted supervision of all

teachers under his supervision, including the defendant,

Marjorie Taylor (R. 276).

Shortly after the beginning of the school year the de-

fendant began to criticize the plaintiff and seek to obtain

his dismissal as an incompetent.

Teacher, Don George:

“Q Now, would you relate to the Court

any other circumstances where — well, the

place where it occurred, where Miss Taylor

directed any derogatory remarks concerning

Mr. Stanley or his qualifications?

A Well, the one incident that | can re-

call occurred in a room that was used as a

faculty lounge at that time, and she and Mr.

Stanley undoubtedly had had an argument

and was making statements to the effect that

— or indicating or doubting his qualifications

as principal and his ability to lead the school

as principal, and that he shouldn't remain as

principal.

Qs Did she say anything specifically about

her role?

A Just that if she could she would see

him out as principal. I don’t know what that

would mean.” (R. 75)

Teacher, Shaw Terwilliger:

“Q During that year, were you aware of

some friction or hostility that existed be-

tween Miss Taylor and Mr. Staniey?

A Yes, 1 was.

Q And approximately during the course

of the school year, when did you become

aware of it?

A Well, I think I sensed it the first two

weeks of school.

Q What brought this to your attention?

A Well, Miss Taylor, I know, criticized

Mr. Stanley some. She thought that some

of his decisions weren't right or something.

Q Did she criticize him personally as

far as his background or competency was

concerned?

A Would you repeat that question?

Q Did she criticize him personally as

far as his competency or background was

concerned?

A Yes, she did.” (R. 361-362)

During this time the defendant and her family were

represented by Attorney C. G. Colburn who also acted as

President of the School Board for Virginia Community

School District No. 64.

“Now they talk about the fact, I noticed

in his opening argument here, that he wants

to try me along with everybody else con-

nected here, by saying that I happened to

be the attorney for Miss Taylor’s family,

that I happened to be on the School

Board and so forth, and now, all of you

know, that with the high salaries that a

School Board member draws, you couldn’t

afford very well to give up some clients

that you have had for about twenty years

See 3

Pe oh)

—s eee Fe et alae!

— fe siete al SPE aaey - -_ —i

because you were elected to the School

Board, so | am not making any apologies

for the fact that I have represented the

Taylor family for a long time, and still do.”

(C. G. Colburn, Opening Statement, R. 26)

The difficulties and complaints of Miss Taylor persisted

with Stanley’s successors. (Testimony of Donna (Long)

Fox, Employee for University of Illinois Health Depart-

ment, Sidney, Illinois; former student of defendant and

resident of Virginia, Illinois. R. 333-334) Since Mr.

Stanley’s departure, four different men have occupied the

position of principal within the District. (R. 277)

2) Circumstances Surrounding the Original Publication:

The slanderous words were spoken in the presence of

the plaintiff and several students and teachers under the

plaintiff's supervision. It was also spoken within the

hearing of another classroom of students.

“Q What is the first indication that you

had of any problem in the principal’s of-

fice?

A When I heard the voices.

Q And whose voices did you hear?

A Miss Taylor.

Q And in your classroom, were you

attempting to conduct a class and instruct?

A Yes.

Q Could you distinguish what was said?

EAT AP Te LT PE TV

A Yes. I said — when I first realized

something was wrong, I heard Miss Taylor’s

voice, and it was loud enough — well, I

don’t recall offhand, whether or not — the

office was built that summer, and I don’t

remember if the partition went all the way

to the ceiling, but it was in the back corner

of the classroom. I heard her voice coming

from this room, and she was talking about

Mr. Stanley as far as his qualifications of be-

ing a principal, and also thing of being fit to

be a principal, and then also, she referred to

him as comparable to Lee Harvey Oswald and

Jack Ruby, in the same year of the assassina-

tion of President Kennedy.

Q And during the course of this, did you

attempt to continue instructing your class?

A I tried to. As I said, 1 was aware of

what was happening, and my students were

aware of what was happening, and | lost my

students, because they were interested in what

was taking place, rather than what I was try-

ing to do.” (R. 90-91)

At the time of the utterance the defendant stated:

“ _. . “Well, I want to call Mr. Colburn.’,

and she started for my telephone. I thought

this was no place to continue that in the

presence of these students and teachers. |

put my arm on the phone. I said, ‘I will

report this to Mr. Colburn in my own due

time,’, and I said, ‘If it will help to get this

wre

girl and you into your classroom’, | said, ‘I

will guarantee that either you or I one will

not be back next year.’ I thought it would

make her happy, but it did not.

Q How did she respond?

A Her words were, ‘Oh, it will be you

that will be gone. I will still be here, I am

on tenure. You can’t fire me. It will be

you that will be gone.’” (Plaintiff's Testi-

mony, R. 163-164)

3) - Republication and Aggravation:

The allegation of incompetence was republished in plead-

ing truth as a defense. (A. 40-41) In support of the

truth of defendant’s allegation of incompetence the defend-

ant testified:

“Q You have filed an affirmative defense

in this matter, Miss Taylor, and you allege

after denying that you said these things — ex-

cuse me — may I have the pleadings?

Now, tell me if I am wrong; do you allege

as a defense for whatever you did or said,

and that will be determined by the Jury; I

am quoting now, ‘For a further defense to

the Complaint as amended, the Defendant

by her aforesaid attomey, alleges that the

supposed alleged defamatory words contained

in the Complaint as amended, to-wit: ‘I think

you are plain stupid because you are unfit to

be a principal of this school or any other

school. You are not qualified. You are a

disgrace to the profession’, were true and

were spoken in good faith and without

malice. Do you allege that these things,

if said were true?

A_ I was quite concerned, because I

felt discipline was going to break down at

school.

Q Do you allege that these things, if

said, were true?

A_ In my opinion, yes.

= * +

Q Do you contend that Mr. Stanley is

incompetent wherever he is or just when

he is supervising you?

A_ I think he is incompetent as a super-

visor of people. I think there are some

things the man can do very well.

Q And that is regardless of whether he

is in Virginia or Kansas City or wherever

he is?

A That’s true.” (R. 273-274, 276)

and in support thereof her attorney argued:

“ATTORNEY COLBURN: .. . (Open-

ing Statement)

Well anyway, the evidence will show that

Mr. Stanley never held a job as administratcr

or principal or superintendent before he came

to Virginia in 1963. The evidence, I think

mee

PGE LLNS ITE NE SS

cael i ies aa eae Sg

ms es

will show that he probably never held one

since.” (R. 27) (Emphasis added)

’

4) Damages: .

‘

The defendant’s statements spread throughout the school.

“Q Did you take the time to make any

type of investigation as to what happened

in your absence that day?

A_ I didn’t think it was necessary, be-

cause the incident had been spread all over

school, and I think that there was enough

witnesses that everyone became familiar

with it. At this point it had gotten out

of hand anyway.” (Def. Witness Rade-

maker, on cross-examination, R. 307)

It was also a matter of general knowledge throughout

the community, including members of the School Board.

‘Q The Board of Education never heard

the evidence presented in this courtroom,

did they, Mr. Rademaker?

A No, they didn’t, if it is such evidence.

Q You and Mr. Colburn never afforded

Mr. Stanley the opportunity to develop the

facts in this case or bring it to the Board’s

attention, did you?

A When the Board of Education in a

small town, this is a Board, they are doing

this without pay, they are criticized for

actions from time to time, and you can’t

tell me that the Board of Education isn’t

approached by citizens and the student

body, they know what is going on. This

was not a —

Q Let’s not talk about the Board’s

criticism. Let’s talk about your recommend-

ation. It was based upon incompetency in

this system?

A_ Right.

Q And that was based upon generalities

of teachers that you cannot name, and bits

of gossip in corners of the school?

A No, you are putting words in my mouth.

There is one other code. One other means,

and that would be my day-to-day personal re-

action with him. This would run into the pic-

ture too. In the event I omitted this, | am

sorry, but it is part of it.

Q You do acknowledge that you picked

up some of this information or rather com-

ments around the building.

A Yes, and if an administrator doesn’t

do this he is not tuned in. He is not with

it.” (R. 309-311)

In December, immediately following the occurrence, the

plaintiff made a written request through Supt. Dean Rade-

maker to School Board President C. G. Colburn for a hear-

ing which was denied.

“Q What did you ask in the letter?

A I had three short paragraphs. Gentle-

men: I hereby request an audience with the

Board of Education at a special meeting to

be called at 7:30 P.M. this date. The letter

was dated December 5, 1963. Paragraph 2.

This is for the purpose of discussing pertinent

facts relative to a serious personnel situation

involving the entire administration, faculty and

student body. Paragraph Three. This letter

is submitted in what is to be considered — in

what I would consider in the best interests of

this school district. Respectfully yours, Monty

M. Stanley, Principal.” (R. 171-172)

Mr. Colburn later presided over the December meeting and

the minutes reflect:

PLAINTIFF’S EXHIBIT 1

“The minutes of the regular meeting of

the Board of Education of Virginia Com-

munity Unit School Dist. No. 64, Cass Co.,

which was held on December 16, 1963 in

the office of the Supt. of Schools at 7:30

P.M.

“Miss Taylor’s and Mr. Stanley’s fracus

were discussed.

“Meeting adjourned at 9:15 P.M.” (A.

84, 86)

Mr. Colburn continued in the dual capacity of defendant’s

attorney and President of the School Board until the

April meeting, whereupon the following action was taken:

PLAINTIFF’S EXHIBIT 2

“Minutes of the regular meeting of the

Board of Education of the Virginia Com-

munity Unit School Dist. No. 64, Cass Co.

which was held on April 17, 1964 at 7:30

in the office of the Supt.

* * *

“The Superintendent and the Board

entered a discussion as to the continuance

of Mr. Stanley’s contract. It was moved

by Mr. Dodds and seconded by Mr. Huff-

man that Mr. Stanley’s contract be termi-

nated at the end of the 1963-64 school

year. The motion carried unanimously.

This motion was made for the best inter-

est of the school. Roll call:

Dodds yes Devlin, yes

Huffman, yes Snow, yes

Reiterman, yes Peterson, yes

Colburn, yes

“A discussion was had by the members

of the Board concerning certain matters af-

fecting the teacher Miss Marjorie Taylor, in

regard to her conduct as a teacher and the

Superintendent was advised of the Board’s

position in the matter as discussed.

“Meeting adjourned at 9:15 P.M.” (A.

86, 88)

This dismissal was the deciding factor in plaintiff losing

employment in Kansas City, Missouri.

na eneD aye LIT RAEN TEN MAE RT PREPS :

ae eee Le

“Q What was the primary or deciding

factor that caused you to recommend Mr.

Richmond over Mr. Stanley, even though,

as you mentioned earlier, his credentials

were more impressive than Mr. Richmond’s?

A ... 1 always ask a question about

‘why are you seeking this position?’ Mr.

Stanley told me at the time he was not

returning to his present position that he

held at that time. Naturally, I wanted

to know the reasons. He told me, the best

that I can recollect, is that he had had

difficulty with a teacher who had caus-

ed him quite a bit of concern during his

time of supervision — was apparently un-

cooperating to a point there was a real

conflict between he and this teacher.

She had called him names, and he had

mentioned some of the things on which

they could not agree, but I do not re-

call that he told me that he was fired

by his Board without a hearing and the

teacher retained her position.

Q What if any, effect, did this dis-

closure have upon your evaluation of

Mr. Stanley as a suitable candidate to

be recommended to the Board?

A During the course of the evening,

I was — my Assistant Superintendent

and I, were constantly trying to evalu-

ate the relative merit of these two men

for the position, and that was the turn-

ing point in my decision.” (R. 225,

226) (Emphasis added)

PEW NYO ON PE STB AMSG OSD

Plaintiff was repeatedly denied employment as a prin-

cipal or administrator during the years following this oc-

currence. (A. 144-145)

5) Plaintiff's Prior Credentials and Reputation:

The plaintiff, Monty Stanley, graduated from the Illi-

nois Commercial College in 1940 at the age of 20. (R.

152) After spending ten years in service and as a Clerk

for the War Board, he returned to Eastern Illinois Univer-

sity with his family under the G.1. Bill where he obtained

a Master’s Degree in Business Education in 1953. While

at Eastern University he obtained a 4.25 average on a 5

point system. He belonged to three National and Inter-

national Education Societies, (R. 152).

In 1953, at the age of 33, Monty Stanley began his

professional teaching career. He returned to his home

town of Clay City and began teaching at Clay City Com-

munity High School. He attained tenure and taught Busi-

ness Education from September, 1953, until June of 1959,

when he accepted an appointment as Supervisor with the

Office of the Superintendent of Public Instruction in

Springfield. (R. 152)

During the years after he left Eastern University, Monty

Stanley continued his education. He attended night classes

in Mt. Vernon, 50 miles from his home in Flora, Illinois.

He spent two summers at the University of Illinois in

Champaign. In addition, he taught adult education courses

at night for the Vocational Technical Institution of South-

ern Illinois University. (R. 152) While with the State

Superintendent of Public Instruction, he taught office and

management classes to State Supervisors, Department Heads

and Office Engineers. (R. 152)

After two years, the plaintiff accepted a position as As-

sistant Business Manager of the Arlington Heights Public

School in Cook County, where he gained additional ex-

perience in school administration. After two years in

suburban Chicago, Monty Stanley made application for

the position of Superintendent of Schools in the Virginia

School District. Dean Rademaker was chosen as Superin-

tendent, but the plaintiff was contacted and asked if he

would accept the newly created position of Principal under

Rademaker as Superintendent. Because of the unique po-

sition of Principal of a Unit District, including supervision

of grades one through twelve, the plaintiff accepted the

position and returned his contract as Guidance Director

of Newton Community High School. (R. 153-155) Monty

Stanley came to Virginia, Illinois, at age 43, at a decrease

in salary, to occupy his first and last job as “administra-

tor, or principal, or superintendent.” (R. 27)

This Court has recently stated that the procedure fol-

lowed in this case may well cause a denial of due process

where a person’s good name and reputation are affected.

“There might be cases in which a State

refused to reemploy a person under such

circumstances that interests in liberty would

be implicated. But this is not such a case.

“The State, in declining to rehire the

respondent, did not make any charge

against him that might seriously damage

his standing and associations in his com-

munity. It did not base the nonrenewal

of his contract on a charge, for example,

that he had been guilty of dishonesty, or

immorality. Had it done so, this would be

a different case. For ‘{[w]here a person’s

good name, reputation, honor or integrity

is at stake because of what the government

is doing to him, notice and an opportunity

to be heard are essential. Wisconsin v. Con-

Stantineau, 400 U.S. 433, 437. Wieman v.

Updegraff, 344 US. 183, 191; Joint Anti-

Fascist Refugee Committee v. McGrath, 341

US. 123; United States v. Lovett, 328 US.

303, 316-317; Peters v. Hobby, 349 US. 331,

352 (concurring opinion). See Cafeteria

Workers v. McElroy, 367 U.S. 886, 898. In

such a case, due process would accord an op-

portunity to refute the charge before Univer-

sity officials. In the present case, however,

there is no suggestion whatever that the re-

spondent’s interest in his ‘good name, repu-

tation, honor or integrity’ is at stake.

“Similarly, there is no suggestion that the

State, in declining to reemploy the respond-

ent, imposed on him a stigma or other dis-

ability that foreclosed his freedom to take

advantage of other employment opportunities.

The State, for example, did not involve any

regulations to bar the respondent from all

other public employment in State universities.

Had it done so, this, again, would be a dif-

ferent case. For ‘[t]o be deprived not only

of present government employment but of

future opportunity for it is no small injury

.... Joint Anti-Fascist Refugee Committee

v. McGrath, supra, at 185 (Jackson, J., con-

curring). See Truax v. Raich, 239 US. 33,

41. The Court has held, for example, that a

State, in regulating eligibility for a type of

professional employment, cannot foreclose a

range of opportunities ‘in a manner . . . that

contravene[s] due process,” Schware v. Board

of Bar Examiners, 353 US. 232, 238, and,

specifically, in a manner that denies the right

to a full prior hearing. Willner v. Committee

on Character, 373 US. 96, 103. See Cafeteria

Workers v. McElroy, supra, at 898.” Board of

Regents v. Roth, No. 71-162 US. _

(decided June 29, 1972) pp. B3858-B3859.

The School Board acted through defendant's attorney as

its President and was an obvious denial of due process.

For a Judicial branch of State government to later deny a

jury trial compounds the denial of hearing such an arbi-

trary abuse and denies both equal protection of the law

and due process. As observed by the Illinois Association

of Secondary School Principals in its amicus curiae brief:

“A School Board has a legitimate interest,

in fact a duty, to see that only qualified

teachers are retained within a system. This

does not mean a Board has absolute discre-

tion to ignore existing facts and act arbi-

trarily.

“It is significant that after the alleged

slander the plaintiff was not granted fair treat-

ment in accordance with recent constitutional

decisions in the area of due process. If the

a cause in his failure to be rehired, the dam-

age done was compounded by the Board's

action and remains an immutable black mark

upon the plaintiffs professional record.

“In this case the pressure did not arise

from the community. It came from a single

accusor. The accusation of incompetency was

republished through a school board president

and attorney representing both the accusor

and the body sitting in judgment over the ac-

cused in absentia. This type of procedure can

never afford due process nor justify the result

reached.” (Amicus Curiae Brief of Illinois As-

sociation of Secondary School Principals, pp.

9, 10, 12)

We do not presume to inform this Court as to the mean-

ing of due process as used in the Fourteenth Amendment.

This Court has come to grips with this issue more often

than perhaps any other problem in modern constitutional

law. However, the issue presented in this petition is unique,

in that we allege a violation of the due process clause of

the Fourteenth Amendment by a State Court of review.

This violation is based upon an arbitrary denial of a basic

and fundamental right, the right to civil jury trial. This

question is unique because it is hard to envision another

case where the violation is so gross and so obvious and

where the violation is by the Judicial branch of a sover-

eign state entrusted with the equal administration of jus-

tice. We pray the Court take cognizance of the momen-

tous implications of the action taken by the Illinois Ap-

pellate Court in denying a citizen the right to have a jury

determine the merits of this controversy.

nD NS LA AL IODA

It is appropriate in petitioning this Honorable Court to

exercise its discretionary writ of certiorari to note that this

issue is unsettled. In the Court’s own words:

“The Court has not hesitated to reexamine

past decisions according the Fourteenth Amend-

ment a less central role in the preservation of

basic liberties than that which was contem-

plated by its Framers when they added the

Amendment to our constitutional scheme.”

Malloy v. Hogan, 378 US. 1, 5.

It is our contention that the right of civil trial by jury is

a fundamental right, and that an arbitrary and complete

denial by a State Court constitutes a denial of due process

as applied to the States through the Fourteenth Amend-

ment.

The obvious divergence of philosophy as to the meaning

of due process as used in the Fourteenth Amendment is

evident in the expression of both majority and minority

opinions in leading cases reported over the past half cen-

tury. (Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226;

Twining v. New Jersey, 211 U.S. 78; Palko v. Connecticut,

302 U.S. 319; Adamson vy. Calif., 332 U.S. 46; Gideon v.

Wainwright, 372 U.S. 355; Malloy v. Hogan, 378 US. 1.)

In Twining v. New Jersey, 211 U.S. 78, the Court, in re-

lying upon Chicago, B. & Q. R. Co. v. Chicago, 166 US.

226, held:

“ee

. it is possible that some of the per-

sonal rights safeguarded by the first eight

Amendments against National action may also

be safeguarded against state action, because a

denial of them would be a denial of due pro-

cess of law.” at 99.

24 _

Later Mr. Justice Cardozo, in Palko v. Connecticut, 302

U.S. 319, held that certain basic provisions of the Bill of

Rights might be “absorbed” within the Fourteenth Amend-

ment if “ . . . . neither liberty nor justice would exist if

they were sacrificed.” at 326. Thus was born the concept

of “absorption” by which the Court has included selective

provisions of the Bill of Rights and applied them to the

States. As pointed out by Mr. Justice Douglas in Gideon

v. Wainwright, 372 U.S. 355, 346, the doctrine of “incor-

poration” of all the first eight of the Amendments has been

advocated by many Justices, past and present, to insure

uniform application of the fundamental freedoms enumer-

ated in our Bill of Rights. However, this issue was squarely

joined in Adamson v. California, 332 U.S. 46, and resolved

by a 5 to 4 decision that there is no blanket incorporation

of the Bill of Rights in the Fourteenth Amendment.

The question is then presented: Is civil jury trial a right

protected from arbitrary denial by a State through the due

process clause of the Fourteenth Amendment? Although

we subscribed to the “absorption” philosophy, we do not

rest our case on the Seventh Amendment alone. While it

is persuasive to argue that because a specific right is ex-

pressly enumerated in our Bill of Rights, it therefore should

be applied to the States through the due process clause of

the Fourtecnth Amendment; it is even more compelling to

show that this right was deemed as basic by our Founding

Fathers and Framers of our Constitution and therefore was

included as a substantive right.

We contend that the right of civil jury trial is “absorbed”

into the meaning of due process because it is a basic and

fundamental right, and further that it is “implicit in the

concept of ordered liberty’ as defined in Palko v. Connec-

ticut, 302 U.S. 319, 325.

As recently observed by this Court in including right to

a jury trial in criminal cases:

“That clause now protects the right to

compensation for property taken by the

State;* the rights of speech, press, and reli-

gion covered by the First Amendment;> the

Fourth Amendment rights to be free from

unreasonable searches and seizures and to

have excluded from criminal trials any evi-

dence illegally seized;® the right guaranteed

by the Fifth Amendment to be free of com-

pelled self-incrimination;’ and the Sixth

Amendment rights to counsel,® to a speedy?

and public™ trial, to confrontation of op-

posing witnesses,!! and to compulsory~pro-

cess for obtaining witnesses.!2” Duncan v.

Louisiana, 391 U.S. 145, 148 (1968)

Compiled below are individual and documentary testi-

monials as to the basic and fundamental nature of civil

jury trial as expressed at the time of the formation of

this nation.

4 Chicago, B. & Q.R. Co. v. Chicago, 166 US. 226 (1897).

5 See, e.g., Fiske v. Kansas, 274 US. 380 (1927).

7 Malloy v. Hogan, 378 US. 1 (1964).

8 Gideon v. Wainwright, 372 US. 335 (1963).

9 Klopfer v. North Carolina, 386 US. 213 (1967).

10 In re Oliver, 333 US. 257 (1948).

11 pointer v. Texas, 380 US. 400 (1964).

12 Washington v. Texas, 388 US. 14 (1967).

* * *

Documentary:

“He (the King of England) has combined,

with others, to subject us to a jurisdiction

foreign to our Constitution, and unacknowl-

edged by our laws; giving his assent to their

Acts of pretended Legislation . . . for depriv-

ing us of the benefit of Trial by Jury.”

(Declaration of Independence (1776))

“In Suits at common law, where the value

in controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury, shall be otherwise re-

examined in any Court of the United States,

than according to the rules of the common

law.” (Constitution of the United States, Sev-

enth Amendment)

“The friends and adversaries of the plan of

the convention, if they agree in nothing else,

concur at least in the value they set upon the

trial by jury; or if there be any difference be-

tween them it consists in this: the former re-

gard it as a valuable safeguard to liberty; the

latter represent it as the very palladium of

free government.” (Federalist No. 83)

“That in controversies respecting property,

and in suits between man and man, the an-

cient trial by Jury is one of the greatest Se-

curities to the rights of the people, and ought

to remain sacred and inviolable. Twelfth.

That every freeman ought to find a certain

CELE TELIE EEEE LEAL ALLE LIS LEE INS IS Se ae

ee hy a ue eS P - -- .

remedy by recourse to the laws for all in-

juries and wrongs he may receive in his per-

son, property or character. He ought to ob-

tain right and justice freely without sale,

completely and without denial, promptly and

without delay, and that all establishments or

regulations contravening these rights, are op-

pressive and unjust.” (Ratification of the

Const. of the U. S., State of Virginia)

“That the trial by jury in the extent that

it obtains by the Common Law of England

is one of the greatest securities to the rights

of a free People, and ought to remain invio-

late.” (Ratification of the Constitution of

the U.S., State of New York.)

Individual:

Thomas Jefferson:

“I consider trial by jury as the only anchor

ever yet imagined by man, by which a govern-

ment can be held to the principles of its con-

stitution.”” 3 Writing of Thomas Jefferson

(Washington ed.) 71.”

Alexander Hamilton:

“|. . jury verdicts should be re-examined,

if at all, only by a second jury, either by re-

manding the cause to the court below for a

second trial of the fact, or by directing an

issue immediately out of the Supreme Court.”

Patrick Henry:

“_.. Trial by jury is the best appendage

of freedom ... We are told that we are to

part with that trial by jury with which our

ancestors secured their lives and property. . .

I hope we shall never be induced, by such

arguments, to part with that excelient mode

of trial. No appeal can now be made as to

fact in common law suits. The unanimous

verdict of impartial men cannot be reversed.”

(Emphasis added)

James Madison, the Father of our Constitution, de-

fined the court’s role in protecting this and other free-

doms enumerated in our Bill of Rights:

“Independent tribunals of justice will con-

sider themselves in a peculiar manner the

guardians of those rights; . . . they will be

naturally led to resist every encroachment

upon rights expressly stipulated for in the

Constitution by the Declaration of right.”!

The Duncan case reiterated this position as to the im-

portance of a jury trial within contemporary standards of

due process:

“Beyond this, the jury trial provisions in the

Federal and State Constitutions reflect a fun-

damental decision about the exercise of offi-

cial power — a reluctance to entrust plenary

powers over the life and liberty of the citizen

to one judge or to a group of judges.”” Duncan

v. Louisiana, 391 U.S. 145, 156 (1968)

The first case to relate the due process clause of the

Fourteenth Amendment to the basic rights enumerated in

the Bill of Rights was Chicago, B. & Q. R. Co. v. Chicago,

(1) We are indebted to Mr. Justice Black’s historical documentation

in his dissent in Galloway v. United States, 319 U.S. 372, for the

above individual quotations.

— aon ie or 152) EY AOE?

166 U.S. 266. In deciding whether or not a taking of

property without just compensation constituted a denial

of due process the Court came to grips with the meaning

of the Seventh Amendment as applied to the Federal

Courts. After recognizing that it could review only ques-

tions of law it concluded:

“Even if we were of opinion in view of the

evidence that the jury erred in finding that no

property right, of substantial value in money,

had been taken from the railroad company by

reason of the opening of a street across its

right of way, we cannot on that ground, re-

examine the final judgment of the state court.

We are permitted only to inquire whether: the

trial court prescribed any rule of law for the

guidance of the jury that was in absolute dis-

regard of the company’s right to just compen-

sation.”

The Court however made this statement:

“In our opinion, a judgment of a state court,

even if it be authorized by statute, whereby

private property is taken for the state or under

its direction for public use, without compen-

sation made or secured to the owner, is, upon

principle and authority, wanting in the due

process of law required by the 14th Amend-

ment of the Constitution of the United States,

and the affirmance of such judgment by the

highest ocurt of the state is a denial by that

state of a right secured to the pwner by that

instrument.”

If such a judgment based upon a jury finding would deny

due process for failure to pay just compensation for property

taken, would not a judgment that arbitrarily reverses a

jury finding for professional slander constitute a denial of

due process under the Fourteenth Amendment?

Even allowing for a state’s divergence in philosophy in-

consistent with our Founding Fathers and the Federal Con-

stitution, we find Illinois to be no free experimenter in the

elimination of basic rights. Her new 1970 Constitution

providing for civil jury trials remains unchanged. Her

Statutes contain no revolutionary procedure indulging such

practice. Her courts previously have recognized the man-

dates of a Constitutional system and its protection of the

jury system.

“In our opinion section 120 of the Practice

Act was intended only to apply to cases where

a jury was waived in the trial court by agree-

ment of the parties, or where tried by jury the

trial court would have been justified in direct-

ing a verdict because the evidence did not tend

to establish a cause of action but refused to do

so.... But if the statute be construed to

confer on the Appellate Court the sarhe func-

tions exercised by a jury in a trial court, such

construction would render it unconstitutional,

as depriving a party of the constitutional right

to trial by jury. As applied to cases which in

our opinion it was intended to apply, it would

not be unconstitutional.” Mirich v. Forschner

Contracting Co., 312 Ill. 343, 357.

Former Justice Black has long championed the right of

both civil and criminal jury trial and in the February issue

of the Yale Law Journal in commemoration of his 70th

birthday, Professor Leon Green traced briefly the history

— 31

of civil jury trial and Mr. Justice Black’s position. In a

closing footnote Professor Green noted:

“35. Fortunately there are other devoted

guardians of jury trial and of the integrity of

trial courts to be found in the state and fed-

eral systems. Outstanding among these is

Justice Carter of the California Supreme

Court, whose opinions are probably unequaled

for thier sturdy advocacy of jury trial. And

the scholarly and articulate Judge Jerome

Frank of the Second Circuit, although he

would like to see jury trial eliminated by

constitutional amendment, at least in civil

cases, never ceases to urge the overwhelming

importance of the facts in every litigation,

and the exclusive power of the jury, under

existing constitutional provisions, to evaluate

the facts. Skidmore v. Baltimore & O.R.R.,

167 F.2d 54 (2d Cir. 1948); United States v.

Antonelli Fireworks Co., 155 F.2d 631, 665

(2d Cir. 1946). But such judges are rare

and they may well be the last great judges

who intelligently fight the battle for the jury.

For the power of organization, the volume

and haste of the flow of business, and the

mesh of doctrines are steadily and remorse-

lessly taking jury trial (except for the for-

mality) out of play as a mechanism for the

protection of the individual’s rights in civil

matters.”” The Yale Law Journal, Volume

64, February, 1956, Number 4, Jury Trial

and Mr. Justice Black, by Leon Green, p.

494, footnote 35.

This Court has by a process of absorption gradually ex-

panded the concept of due process to incorporate the ma-

jor provisions of the first eight Amendments to our Fed-

eral Constitution. It is academic to argue whether or not

the right of civil jury trial is included under the meaning

of the due process clause of the Fourteenth Amendment

by a process of “incorporation,” “absorption” or embraced

within the concept “implicit in our system of ordered lib-

erty.” The fact remains that it is a basic and fundamental

right protected in both the Federal and Illinois Constitutions

and ingrained in our Anglo-American common law concept

of impartial adjudication. Mr. Justice Black, in his dissent

in Adamson v. Calif, 332 U.S. 46, 89, pointed out that our

Bill of Rights and its provisions “. . . may be thought out-

dated abstractions by some,” and concluded, “To hold that

this Court can determine what, if any, provisions of the Bill

of Rights will be enforced, and if so to what degree, is to

frustrate the great design of a written Constitution.”

More recently this Court has stated that the right to a

jury in criminal proceedings does not require a common

law panel of twelve. In so doing the Court implied that

the guarantees of the 7th Amendment were yet to be

passed upon.

“30. Similarly, cases interpreting the jury

trial provisions of the Seventh Amendment gen-

erally leap from the fact that the jury pos-

sessed a certain feature at common law to the

conclusion that that feature must have been

preserved by the Amendment's simple refer-

ence to trial by ‘jury. £.g. Capital Traction

Co. v. Hof, 174 US. 1, 13-14 (1899); Ameri-

can Publishing Co. v. Fisher, 166 US. 464,

468 (1897). While much of our discussion

Fe tl ln i i ie

in this case may be thought to bear equally

on the interpretation of the Seventh Amend-

ments jury trial provisions, we emphasize that

the question is not before us; we do not de-

cide whether, for example, additional refer-

ences to the ‘common law’ that occur in the

Seventh Amendment might support a differ-

ent interpretation. See infra, at 97 and n.

44.” Williams v. Florida, 399 US. 78, 92

(footnote 30).

In this case the plaintiff proved the alleged statements,

as acknowledged in the Illinois court's opinion. Under the

common law of Illinois and all antecedent Anglo-American

jurisprudence, the words themselves are actionable per se.

To reverse without remanding a jury verdict, is to deny

plaintiff equal protection of the laws. To deny the plain-

tiff a hearing for redress, is to deny due process. To deny

plaintiff his right to a jury trial upon an actionable cause,

properly pleaded and supported by evidence, is a judicial

usurpation of his rights under the Seventh Amendment as

applied to the States through the equal protection and duc

process clauses of the Fourteenth Amendment.

A STATE JUDICIARY CANNOT ARBITRARILY

DENY ITS CITIZENS A FUNDAMENTAL RIGHT

WITHOUT VIOLATING THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT

It has often been held that mere error by a State court

does not constitute a denial of due process. Beck v. Wash-

ington, 369 US. 541. This rule has been applied even

though it may be contrary to previous expressions by the

same Court. However, this Court has indicated on several

occasions that if the error is so gross and obvious as to

approach arbitrary action, the decision itself constitutes a

denial of due process by the Judiciary. With reference to

condemnation proceedings by a State, Mr. Justice Cardozo

distinguished between mere error and arbitrary rulings by

a tribunal.

“To bring about a taking without due pro-

cess of law by force of such a judgment, the

error must be gross and obvious, coming close

to the boundary of arbitray action.” Roberts

v. New York, 295 US. 264, 277.

In addition to the arbitrary test, the Court has also inti-

mated that an erroneous decision may constitute a denial

of due process if it affects fundamental principles estab-

lished in our system or jurisprudence.

“We cannot interfere unless the judgment

amounts to mere arbitrary or capricious exer-

cise of power, or is in clear conflict with those

fundamental ‘principles which have been estab-

lished in our system of jurisprudence for the

protection and enforcement of private rights.’ ™

American Railway Exp. Co. v. Kentucky, 273

US. 269, 273. (Emphasis added)

Thus, if the decision is itself arbitrary or in conflict with

a fundamental principle of jurisprudence, it is violative of

due process. What is more fundamental than the ancient

Anglo-American concept of jury trial in the adjudication

of private civil litigation? The fact that it was included

as a basic and fundamental right in our Federal Constitu-

tion and in virtually every State is the most eloquent tes-

timonial of its importance in our philosophy and system

of government.

The above cases considered only the proposition as to

whether or not the erroneous nature of the decision itself

constituted a substantive denial of due process. We are

not seeking mere review of an erroneous decision, but pro-

tection of a basic and fundamental right. The right of

civil trial by jury is an inherent procedural right to sub-

mit disputed questions of fact to one’s peers. This deci-

sion involves more than mere error in the result. It con-

stitutes a basic denial of what has always been considered

to be an essential right in civil proceedings. Therefore,

this decision of the Illinois Appellate Court denies the pe-

titioner property without due process of law in both the

procedural and substantive sense. It is error both in form

and result. This error is gross and obvious and therefore

arbitrary on its face.

CONCLUSION

Your petitioner prays that the Court grant Writ of Cer-

tiorari to the Appellate Court of Illinois, Fourth District,

and reverse the judgment of that Court and remand the

cause with directions to reverse the judgment of the Ap-

pellate Court, Fourth District, of Illinois, and to affirm the

judgment of the Circuit Court, Eighth Judicial Circuit of

Illinois, Cass County, Virginia, Illinois.

Respectfully submitted,

JACK H. OLENDER, Esq.

910 — 17th Street, N.W.

Washington, DC. 20006.

Of Counsel,

Thomas F. Londrigan, Esq.

Londrigan and Potter

1227 South Seventh Street

Post Office Box 399

Springfield, Illinois 62705

Attorneys for Petitioner

—— ~ - =

Se oe ee eee ee -

A-l

APPENDIX

STATE OF ILLINOIS

APPELLATE COURT

FOURTH DISTRICT

General No. 11436

Monty M. Stanley, )

Plaintiff-A ppellee )

) Appeal from

vs. ) Circuit Court

) Cass County

Marjorie Taylor, )

Defendant-Appellant )

MK. JUSTICE ALLOY delivered the opinion of the court:

Defendant Marjorie Taylor appeals from a verdict and

judgment rendered against her for the sum of $75,775 in

the slander action instituted by plaintiff Monty M. Stanley

in the Circuit Court of Cass County.

When the incident occurred which gave rise to the pre-

sent action, plaintiff was principal of Virginia High School,

Virginia, Illinois, and defendant was a teacher in the same

school. Plaintiff, who had no previous experience as a

principal, had been employed by the school in August,

1963, while defendant had been a teacher there since Sep-

tember, 1954. On the evening of December 2, 1963, the

mother of defendant suffered a stroke and defendant sat

up in a hospital for almost all of the night. She was

called away from the school to the hospital the following

morning, but returned and held her afternoon history class

after which she again left the school and went to the hos-

pital. Her movements in and out of the school, it appears,

A-2 ’

were not coordinated with plaintiff and there was uncer-

tainty among the students as to whether her afternoon

class would be held.

The day following, December 4, 1963, at the opening

of her history class at 1:05 P.M., defendant sent a girl

student to plaintiff's office, adjacent to the classroom, to

obtain an “admittance slip,” inasmuch as the student had

been absent from the prior day’s class. She was absent,

it appears, because she had spent the time in the school

gymnasium assisting a coach in the painting of a decora-

tion. When the student came back to the classroom with-

out the slip, defendant accompanied her back to plaintiff's

office. Several persons were present in the office at the

time, and it was further testified that loud voices in the

office could be heard in nearby classrooms.

While numerous witnesses gave their version of what

transpired and was said, we find it necessary for purposes

of this opinion to detail only the substance of plaintiff's

testimony. According to him, he was not certain whether

the student was to have an “admit” slip or a “tardy” slip,

and while he was discussing it with the student, defend-

ant entered his office, started beating her fist on his desk

and stated: “Mr. Stanley, I want you to know, did you

ever see anything more ridiculous in your life than this

girl down in the gym drawing a picture of a silly old red

bird for the coach when she should have been in my his-

tory class?” Plaintiff stated that he did not reply, and

that defendant next said: “I would like to know what

this school system is coming to, anyway you are the poor-

est excuse for a principal I have ever seen in my life. You

sit there all day long and write excuse after excuse. Ex-

cused. Excused. Excused. That’s the only word you

know how to write. In fact, I think you are plain stupid

_e ea ae aia SS

~~ aia Aa re ” Say

—=_

A-3

when you will sit and allow things like this to take place.

In fact you are not qualified to be a principal. I have

checked your record. You are a disgrace to the profes-

sion.”” These words shall hereinafter be referred to as the

“first utterance.”

After an exchange of words about taking the matter up

with the school superintendent, and also reporting it to a

member of the school board, plaintiff said he “would guar-

antee” that either he or defendant would “not be back

next year,” and to this defendant is said to have replied

that it would be plaintiff who would be gone. At about

this time one of the other teachers in the office remarked

that defendant “had been under an awful strain” and

“needed a rest,” and, at this, plaintiff testified to an ex-

change of words as follows: “She said, ‘What did you say

to me all day yesterday in sympathy about my mother in

the hospital?’ I said: ‘Miss Taylor, | didn’t know who

was in the hospital until Mrs. Gutekunst told me the one

was. your mother.’ She said: ‘I shouldn’t have had to

have told you. Everyone else knew it.’ Again, she said:

‘I still want to know. Did you ever see anything more

ridiculous than this girl down in the gym drawing a pic-

ture of a silly old redbird for a coach when she should

have been in my U.S. History class?” I said: ‘Yes, Miss

Taylor, | do know something more ridiculous.’ I said:

‘You left your classroom yesterday. You left the town

without my knowledge as principal of this school district .

in full charge of administration in absence of the superin-

tendent.” Then is when she said: ‘You are just like that

old Lee Harvey Oswald that shot and killed President Ken-

nedy, and that old Jack Ruby who shot and killed him in

Dallas.” I stood up and said: ‘Miss Taylor, I may not be

able to get you fired, but I’m taking this before the Board

of Education. I’m going to recommend revocation of your

teaching certificate, and I’m going to push it all the way,

because I don’t think a teacher like you, that will talk and

act like you are acting in the presence of these students

has any business in a classroom.’ Mr. Henderson and Mrs.

Gutekunst, at that point, got her out of the office.”

Continuing with the testimony of plaintiff, he stated that

he then stepped to the door of defendant’s classrom and

told the students to be quiet until their teacher could re-

turn. He then apparently encountered defendant in an area

we take to have been in a corridor outside the classrom

and she reportedly stated: “I said it. I’m glad I said it

and I say it again. You are nothing but a Lee Harvey Os-

wald and a Jack Ruby.” Plaintiff testified that he then de-

cided to monitor defendant’s class, although he had never

done so before, and while he was in her classrom he said

to her: “I would like to get one thing straight. Did you

compare me with Lee Harvey Oswald and Jack Ruby in.

Dallas, Texas?”, to which she replied: “That’s right, you

did. The one that shot and killed the President, and the

other shot and killed the other. It is people like you who

think and act the way you think and act, that causes them

to do all they did.” The references to Oswald and Ruby

shall hereinafter be referred to, collectively, as the “Oswald-

Ruby” utterances.

We interject, in passing, that no witness testified precisely

to having heard the utterances as testified to by plaintiff.

In varying degrees, however, some corroborated in substance

that the Oswald-Ruby comparison had been made, and that

defendant had questioned plaintiff's qualifications as prin-

cipal. Defendant testified she could not remember what

was said, and others testifying in her behalf stated they did

not hear the utterances attributed to her, although in a po-

sition to do so.

: + - ilar iia ete ne baci ae lla

_— A-5

The original complaint was filed November 23, 1964,

and after long pleading delays the cause came to trial on

the issues formed by a third amended complaint of two

counts, and defendant’s answer and affirmative defenses

thereto. Both counts pleaded the “first utterance” in

words substantially the same as plaintiff's testimony, and

both also pleaded what appears to be a selected compo-

site taken from the three ““Oswald-Ruby utterances.”

Count I was based on a theory that both utterances were

slander per se, while Count II was predicated on a theory

that they were both slander per quod and alleged special

damages. The distinction between the two theories is suc-

cinctly set forth in 33A I.L.P., Slander and Libel, $11, at

Page 24, where it is said:

“Defamatory words may be divided into those

words which are actionable per se, and those

which are actionable per quod. The differ-

ence between defamatory words actionable

per se and those which are actional per quod

is that in those words which are actionable

per se damages need not be specially proved

and malice will be implied, whereas in those

words which are actionable per quod only,

malice and damages must be proved.

“A publication is libelous per se if it is so ob-

viously and naturally hurtful to the person

aggrieved that proof of injurious character

can be, and is, dispensed with. Words ac-

tionable per quod are those which require

an innuendo to give them a slanderous or

libelous meaning and require evidence to

show that as a matter of fact some substan-

tial injury has followed from their use.”

" a

See also: Whitby v. Associates Discount Corp., 59 lll.

App. 2d 337; Ward v. Forest Preserve Dist., 13 Ul. App.

2d 257.

At the conference on jury instructions plaintiff was per-

mitted to file a fourth amended complaint which, for all

practical purposes, was substantially the same as the third

amended complaint, the only notable exception being that

Count I prayed for punitive damages as well as general

damages. (Since only a general verdict was returned, it is

not possible to determine what part of the $75,775.00 ver-

dict, if any, was awarded as punitive damages.) Plaintiff

made an election to proceed only on Count I (slander per

se), and as a consequence, the jury was instructed only on

the issues thereunder. Following the unfavorable verdict,

defendant filed a post-trial motion, subsequently denied,

wherein she prayed that the judgment entered on the ver-

dict be set aside and for judgment notwithstanding the

verdict on grounds, inter alia, that the utterances were not

actionable; that they were not slander per se; and that

plaintiff failed to prove his case. The initial contentions

of defendant on this appeal are essentially the same.

The defendant also contends on appeal that the trial

court erred in its ruling on certain objections to evidence

and on motions to strike testimony; that it was error to

give certain of plaintiffs instructions and to refuse certain

of defendant’s instructions in view of instructions on the

theory of both slander per se and slander per quod since

the case was submitted solely on the theory of slander per

se; that it was error to permit plaintiff to inject the issue

of punitive damages in the trial after the voir dire exam-

ination of the jury and in absence of proof of actual dam-

ages resulting to plaintiff from the words allegedly uttered

by defendant; that the verdict was so excessive as to be

obviously the result of passion and prejudice and was not

supported by the evidence. While we would tend to agree

with certain of defendant’s contentions as to trial errors

if this cause were to be remanded, we believe, however,

that on the record before us we are first required to de-

termine whether the record justifies entry of judgment on

the basis that slander per se was properly alleged and

proven.

This Court has participated in reiterating what is some-

times described as the common law view, that, as a gen-

eral rule, both written and spoken words falsely uttered

- about a person in the presence of others are slander per

se: (1) If they impute to the person spoken of an unfit-

ness to perform the duties of an office or employment;

or (2) if they prejudice the person spoken of in his pro-

fession or trade (WHITBY v. ASSOCIATES DISCOUNT CORP.,

59 Ill. App. 2d 337; 33A I.L.P., Slander and Libel, 821,

p. 33). Based upon these criteria it is the contention of

plaintiff that the utterances here were slander per se, per-

mitting malice and damages to be implied, in that the

“first utterance” falsely accused him of unfitness to per-

form his duties as principal, while the “Oswald-Ruby ut-

terances” were “spoken in aggravation of the words chal-

lenging his professional competency” and tended to preju-

dice him in his profession. In our view, this approach is

not only too simplistic, but is incorrect.

Looking first to the Oswald-Ruby utterances, it is to

be observed that the common law does not give a right

of action for all spoken words, even though they may be

vituperative, derogatory and disparaging terms of abuse

(WRIGHT v. F.W. WOOLWORTH CO., 281 Ill. App. 495, 498).

In our opinion these utterances, one of which was some-

what deliberately induced by plaintiff, were no more than

A8 nf

heated “name-calling” which would be understood as such,

and which had no tendency to defame plaintiff in his pro-

fession or to cause him to be looked upon with contempt,

and for which no cause of action would lie (SKOLNIK v.

NUDELMAN, 95 Ill. App. 2d 293). At the very most, it

is manifest that the Oswald-Ruby utterances were not ac-

tional as slander per se, “In order to make words, either

written or spoken of or concerning one engaged in a par-

ticular calling, actionable per se, they must have been used

of the party in relation to his or her occupation” (CAMP-

BELL v. MORRIS, 224 Ill. App. 569, 572; and see: WRIGHT

v. F. W. WOOLWORTH CO., 281 Ill. App. 495; REED v.

ALBANESE, 78 Ill. App. 2d 53, 61). The Oswald-Ruby

utterances were not specifically spoken of plaintiff in rela-

tion to his profession and, accordingly, were not action-

able per se nor sufficient to support the jury’s verdict.

In considering the first utterance we must observe that

the gravamen of an action for defamation is not the injury

to the plaintiff's feelings, but damage to his réputation in

the eyes of other persons (33A I.L.P., Slander and Libel,

811, p. 23). It has also been declared that while defama-

tory matter, printed and published, may be actionable per

se, the same words, orally spoken, would not be so, ex-

cept as they occasion special damage (HOTZ v. ALTON

TELEGRAPH PRINTING CO., 324 Ill. App. 1; WARD v.

FOREST PRESERVE DIST., 13 Ill. App. 2d 257).

As stated in 50 American Jurisprudence 2d, Libel and

Slander, $12: ‘

“In determining whether defamation is action-

able per se, without the pleading and proof

of special damages, a distinction is drawn by

many courts between written and spoken

SBP TR TT ig FEE ie PONT IAT DG RE S

7 = - ie al ae

A-9

words, so that much that, when spoken, is

not actionable without an averment of ex-

trinsic facts or an allegation and proof of

special damages, is, when written or printed,

actionable per se. The courts base the dis-

tinction upon an alleged difference in the in-

herent characteristics of the two classes of

imputations, it being said that the presump-

tion that words are defamatory arises much

more readily in cases of libel than in cases

of slander. It has frequently been asserted,

to explain the distinction, that written defa-

mation is much more extensively and perma-

nently injurious to character than verbal de-

famation, since it is more widely circulated;

that it is, therefore, more aggravated and

dangerous, as tending to breaches of the

peace; and that the deliberation necessary to

prepare and circulate a libel evinces greater

malice in the defamer and is worthy of

stricter punishment.”

As we have noted, words which are in written or printed

form are susceptible of wider circulation and hence capa-

ble of inflicting greater injury than those which are merely

spoken. Defamation made in writing or print necessitates

some measure of deliberation and so by its very nature

imputes an evil or other devious intention in the writer

(WRIGHT v. F. W. WOOLWORTH CO., 281 Ill. App. 495, 498).

While we have had occasion to review some of the prin-

ciples, to which we have referred, relating to actions of

libel per se in cases which were decided in this Court in-

volving alleged written defamations (WHITBY v. ASSOCIATES

DISCOUNT CORP., supra), we have noted certain observations

A-10

respecting the distinction between libel and slander and

have indicated that we might have been inclined to ac-

cept the distinction as the better rule (MITCHELL v. PEORIA

JOURNALSTAR, 76 Ill. App. 2d 154, 159). We have re-

ferred to the distinctive treatment of slander and libel be-

cause it underscores the necessity of very careful analysis

by the courts of oral statements asserted to be slanderous

per se. Heretofore, we have had no specific case to de-

termine, in which the record required that we test certain

oral statements by reasonable analysis to determine if the

statements could logically be classified as slanderous per

se. The cause before us, however, we believe, illustrates

the type of case in which a court should be required to

examine very closely into the entire record surrounding

the making of the alleged oral statements which are con-

tended to be actionable per se, and as a result of which

it is contended there is no requirement for any proof of

special damage. As a consequence, we have noted that

the teacher in the conversation between them emphasized

that all the teacher thought the principal did was “write

excuses” and that by reason thereof defendant stated that

plaintiff was “not qualified” to be a principal and that

he was “« disgrace” to the profession. We have noted

that the defendant at the time was nervous and over-

wrought by reason of lack of rest and apprehension about

her mother’s health. We have also noted that apparently

what evoked the most heated reaction from plaintiff was

defendant's response involving the assertion of the so-

called Oswald-Ruby statement which, likewise, was ap-

parently a hysterical outburst seeking to characterize plain-

tiff for not having consideration for defendant's mother.

We note that thereafter plaintiff himself then talked about

having defendant fired and that he would recommend re-

vocation of her teaching certificate.

A-11

Taking plaintiff's testimony as true, and as a basis for

our consideration, we have particularly noted that the ex-

change between plaintiff and defendant took place with

very few persons within hearing, and that the statements

made by defendant were spoken in a rather hysterical man-

ner and under circumstances which would make it appa-

rent to the observer that what was said was nothing more

than an irrational argumentative characterization not worthy

of serious consideration. While portions of the first utter-

ance went beyond mere name-~<alling, and included refer-

ence to plaintiff in relation to his profession, we do not

believe that the words were actionable per se under the

circumstances of this case. This is not a situation where

defendant made a deliberate communication to someone

other then plaintiff such as the superintendent of schools

or a similar individual with the direct intention of doing

injury to plaintiff in his position and profession. As the

record shows, the outburst was spontaneous and made di-

rectly to plaintiff and was obviously more thoughtless

than anything else, and a considered evil intention to de-

fame is not easily imputed therefrom. The entire incident

stemmed from what started out as a criticism by defend-

ant of plaintiff's policy of excusing students from class to

engage in extra-curricular activities. Defendant was a teacher

with an interest in the proper functioning of the school

and she was entitled to make fair criticism and comment

in the area which she began to discuss. What transpired

after that taken on the character of mere verbal abuse in

which first the defendant and then the plaintiff charged

each other with professional incompetence. We conclude

that the exchange did not do damage to plaintiff's profes-

sional reputation in the eyes of the persons who happened

to be in position to hear and actually reflected adversely

more on defendant as a result of her hysterical utterances.

A-12

Each utterance would obviously be accepted by the other

persons for what it was — simply “give and take” remarks

in a personal quarrel between the participants. The record

in this case shows no evidence of damage to plaintiff as a

consequence of the making of these statements.

Are we to say that any unguarded oral utterance made

in the heat of an argument, if it contains words affecting

fitness for the profession of a complainant, qualifies in all

cases as slander per se and excuses the necessity of alleging

and proving special damage, and likewise authorizes a jury

to penalize a defendant with punitive damages solely on

the strength of such an utterance irrespective of the circum-

stances? We do not believe that this is or should be the

law. In our opinion the utterances under consideration in

this case, as shown by the record, do not qualify as slander

per se. Accordingly, the trial court should have entered

judgment for defendant notwithstanding the verdict pur-

suant to defendant's motion.

Therefore, for the reasons stated, the judgment of the

Circuit Court of Cass County is reversed.

JUDGMENT REVERSED.

STOUDER, PJ. and SCOTT, J., concur.

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