680 F.2d 527 (7th Cir. 1982), 81-2483, Gertz v. Robert Welch, Inc.

Docket Nº:81-2483.
Citation:680 F.2d 527
Party Name:Elmer GERTZ, Plaintiff-Appellee, v. ROBERT WELCH, INC., Defendant-Appellant.
Case Date:June 16, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 527

680 F.2d 527 (7th Cir. 1982)

Elmer GERTZ, Plaintiff-Appellee,


ROBERT WELCH, INC., Defendant-Appellant.

No. 81-2483.

United States Court of Appeals, Seventh Circuit

June 16, 1982

Argued Feb. 8, 1982.

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[Copyrighted Material Omitted]

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David Machanic, Pierson, Ball Dowd, Washington, D. C., for defendant-appellant.

Wayne Giampietro, DeJong, Poltrock & Giampietro, Chicago, Ill., for plaintiff-appellee.

Before SPRECHER and POSNER, Circuit Judges, and BONSAL, Senior District Judge. [*]

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SPRECHER, Circuit Judge.

This defamation action comes before us after retrial in the district court pursuant to the mandate of the Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). A jury found in favor of the plaintiff, Elmer Gertz, and awarded compensatory and punitive damages. We affirm.


In June, 1968, seventeen-year-old Ronald Nelson was shot and killed by Chicago police officer Richard Nuccio. Nuccio was subsequently indicted and convicted of murder. In addition to the criminal prosecution, the Nelson family retained Chicago attorney Ralla Klepak to file civil actions against Nuccio on behalf of the family. Klepak asked Elmer Gertz, a well-known, reputable Chicago attorney, to serve as co-counsel in the civil actions. Neither Gertz nor Klepak played any role in the criminal prosecution against Nuccio beyond attending the coroner's inquest to ask a few questions on behalf of the family. Gertz made no public statements or comments concerning the civil or criminal cases against Nuccio.

In April, 1969, shortly after Nuccio's initial conviction, 1 an article appeared in American Opinion entitled "Frame-Up-Richard Nuccio and the War on Police." American Opinion is a monthly magazine published by defendant Robert Welch, Inc. ("Welch"), a Massachusetts corporation which is an affiliate of the John Birch Society. The article alleged that Nuccio was being "railroaded" as part of a Communist conspiracy to undermine local police so as to pave the way for a national police force which would support and enforce a Communist dictatorship.

The article named Gertz as one of the members of this conspiracy. He was identified as the lawyer for the Nelson family and one of the leaders of the "attack on Nuccio." Gertz was described as a "Communist-fronter," a "Leninist," and a "Marxist."

The file on Elmer Gertz in Chicago Police Intelligence takes a big, Irish cop to lift. According to the Communist Worker of December 8, 1964, he has signed a petition to abolish the House Committee on Un-American Activities. On May 12, 1966, he sponsored another such petition, published by the Illinois Division of the American Civil Liberties Union-founded by Harry F. Ward, one of the top Communists in the United States. Gertz also was a pallbearer for Jack Ruby, the "lone fanatic" who killed the "lone fanatic" who killed the President of the United States. He has been an official of the Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government.

In fact, the only thing Chicagoans need to know about Gertz is that he is one of the original officers, and has been Vice President, of the Communist National Lawyers Guild-which has been described by the House Committee on Un-American Activities as "one of the foremost legal bulwarks of the Communist Party"-and which probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democrat Convention.

Gertz was also identified as counsel to the commission which authored Dissent and Disorder, a report on the April, 1968, demonstrations in Chicago which was critical of police conduct. The article described that report as "financed by the Roger Baldwin Foundation of Communist Harry Ward's A.C.L.U."

Gertz's role in the Nuccio case, according to the article, was as a leader of "an organized attempt to discredit our local police-organized primarily by the Communist National

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Lawyers Guild, preeminent in which is the same Elmer Gertz who now appears as the Nelsons' lawyer." Under a photo of Gertz was the caption "Elmer Gertz of Red Guild harasses Nuccio." The article also noted that "(t)wo Chicago Assistant Corporation Counsels warned Nuccio not to testify at the coroner's inquest, for fear what he said might jeopardize their defense against Communist-fronter Gertz."

The assertion that Gertz was a Communist or part of a Communist conspiracy was false. Many of the other statements concerning his membership in particular organizations also were false. When Gertz learned of the article, he filed this diversity suit for defamation in the Northern District of Illinois. In a pre-trial ruling, the trial court held that the libelous words published by the defendant constituted libel per se. Gertz v. Robert Welch, Inc., 306 F.Supp. 310 (N.D.Ill.1969). Because of this ruling, injury was presumed, and, upon proof of the falsity of the statements in the article, the court submitted only the issue of damages to the jury. The jury returned a verdict in favor of Gertz and awarded damages of $50,000. The trial court, however, granted judgment notwithstanding the verdict on the basis that the subject matter of the article was of "public interest" and therefore required a showing of actual malice under the standard announced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 322 F.Supp. 997 (N.D.Ill.1970). Because the court found that actual malice had not been established, the jury's verdict could not stand. On appeal, this court affirmed. Gertz v. Robert Welch, Inc., 471 F.2d 801 (7th Cir. 1972).

The Supreme Court granted certiorari and reversed. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The Court disavowed the "public interest" doctrine 2 as a basis for requiring that actual malice be shown in suits involving defamation of private individuals. The Court further held that states could set their own standards of liability for defamation of private individuals as long as they did not impose liability without fault. Damages could not be awarded without proof of injury, however, and punitive damages required a showing of actual malice. The case was remanded for a new trial consistent with these guidelines.

On remand, Gertz amended his complaint to allege both negligence and actual malice by Welch, and requested compensatory and punitive damages. On cross-motions for summary judgment, the trial court held that, based on the law of the case, Gertz was not a public figure, but otherwise denied the motions of both parties. Shortly before trial, Welch was permitted to file an affirmative defense of conditional privilege based on the assertion that the article merely repeated statements in government publications.

After a six-day trial, the jury found in favor of Gertz and awarded compensatory damages of $100,000 and punitive damages of $300,000. It is from this judgment that Welch appeals.


Welch's initial argument is that the issue of actual malice was erroneously submitted to the jury in the second trial because the law of the case doctrine precluded the relitigation of that issue. 3 Welch bases this argument on the first trial court's finding, subsequently upheld by this court and the Supreme Court, that actual malice in publication of the article had not been proved. The issue of actual malice thus was foreclosed

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from being a basis for either liability or punitive damages. Welch would then read the Supreme Court's mandate remanding the case for a new trial as limited to the issues of whether liability existed and whether compensatory damages could be awarded predicated on a negligence theory. Because the trial court on remand determined that Welch was entitled to a conditional privilege which could only be overcome by a showing of actual malice, Welch argues that the trial court should have directed a verdict in its favor once the privilege was established. 4

The law of the case doctrine "is a rule of practice, based on sound policy that, when an issue is once litigated and decided, that should be the end of the matter." Barrett v. Baylor, 457 F.2d 119, 123 (7th Cir. 1972) (citing United States v. United States Smelting, Refining & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950)). The doctrine is a self-imposed prudential limitation rather than a recognition of a limitation of the courts' power. 1B Moore's Federal Practice P 0.404(10) at 573 (2d ed. 1980). It is not, therefore, an immutable rule, but rather a way to foreclose continued appeals for reconsideration of prior rulings of law. In this respect, the law of the case doctrine must be distinguished from res judicata : "(O)ne directs discretion; the other supersedes it and compels judgment." Southern Railway Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 127, 67 L.Ed. 283 (1922). Accord, Connett v. City of Jerseyville, 110 F.2d 1015, 1018 (7th Cir. 1940).

There are two distinct situations where the law of the case doctrine is applicable. First, a court ordinarily will not reconsider its own decision made at an earlier stage of the trial or on a prior appeal, absent clear and convincing reasons to reexamine the prior ruling. See, e.g., Appleton Electric Co. v. Graves Truck Line, Inc., 635 F.2d 603, 607-08 (7th Cir. 1980), cert. denied, 451 U.S. 976, 101 S.Ct. 2058, 68 L.Ed.2d 357 (1981). Second, an inferior court must apply the decision of a superior appellate tribunal on remand. See, e.g., James Burrough Ltd. v. Sign of the Beefeater, Inc., 572 F.2d 574, 577 (7th Cir. 1978).

It is the second situation...

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