Henrichs v. Pivarnik

• Decision Date: 18 March 1992
• Docket Number: No. 64A03-9002-CV-56,64A03-9002-CV-56
• Citation: 588 N.E.2d 537
• Parties: 20 Media L. Rep. 1787 Martin HENRICHS and Elmer L. Jacobsen, Appellants-Defendants, v. Alfred J. PIVARNIK, Appellee-Plaintiff, and Lake-Porter Leadership Council, Inc., Defendant. 1
• Court: Indiana Appellate Court

Page 537

588 N.E.2d 537

20 Media L. Rep. 1787

Martin HENRICHS and Elmer L. Jacobsen, Appellants-Defendants, v. Alfred J. PIVARNIK, Appellee-Plaintiff and Lake-Porter Leadership Council, Inc., Defendant.

No. 64A03-9002-CV-56. ¹

Court of Appeals of Indiana First District.

March 18, 1992.

Joseph A. Morris, Morris, Rathnau & De La Rosa, Chicago, Ill., Sheldon H. Cohan, Merrillville, for appellants-defendants.

Saul I. Ruman, David W. Holub, David M. Hamacher, Ruman, Clements & Tobin, P.C., Hammond, for appellee-plaintiff.

ROBERTSON, Judge.

Appellant-Defendant Martin Henrichs appeals the summary judgment entered against him on the issue of liability in the defamation suit filed against him by Alfred J. Pivarnik. ² A jury trial was held on the issue of damages which resulted in a verdict against Henrichs and in favor of Pivarnik in the amounts of zero ($0.00) compensatory damages and fifteen thousand dollars ($15,000.00) punitive damages. Henrichs also challenges the award of damages. Henrichs raises four (4) issues, which we restate and consolidate into three (3), none of which constitutes reversible error.

FACTS

The facts in the light most favorable to nonmovant Henrichs indicate that on April 27, 1983, Henrichs, as editor-in-chief of a newspaper called the Lake-Porter Leader, published an article authored by Elmer L. Jacobsen entitled "Court Corruption in Indiana Courts" which vilified Pivarnik, then a justice on the Indiana Supreme Court, by claiming that he was connected with vice and organized crime and that he had committed several acts which would have constituted criminal abuses of the power of his judicial office when he was the judge of the Porter County Circuit Court. Eight thousand (8000) copies of the newspaper with the defamatory article were circulated.

Pivarnik filed the present lawsuit on September 12, 1983. On that date, he also served various discovery requests upon the defendants. The defendants have never responded to these discovery requests despite the trial court's order to comply.

On March 2, 1984, Pivarnik filed and served Requests for Admissions on each defendant. On September 17, 1985, the trial court gave all defendants an additional thirty (30) days to respond to the Requests for Admissions which had remained unanswered for more than 500 days. The defendants have never responded to the Requests for Admissions and the admissions became conclusively established under Ind.Trial Rule 36. With respect to Henrichs, the matters admitted are as follows:

1. Martin Henrichs was the editor-in-chief of the Lake-Porter Leader on or about April 27, 1983.

2. Martin Henrichs is and has been the editor-in-chief of the Lake-Porter Leader since April 27, 1983.

3. Martin Henrichs is a member of the Lake-Porter Leadership Council, an unincorporated association.

4. Martin Henrichs is president of Lake-Porter Leadership Council, Inc.

5. Elmer L. Jacobsen is a member of the Lake-Porter Leadership Council, an unincorporated association.

6. Elmer L. Jacobsen is a member of Lake-Porter Leadership Council, Inc.

7. Elmer L. Jacobsen was a staff writer for the Lake-Porter Leader as of April 27, 1983.

8. The Lake-Porter Leadership Council, an unincorporated association, owns and publishes the Lake-Porter Leader.

9. The Lake-Porter Leadership Council, Inc. owns and publishes the Lake-Porter Leader.

10. On or about April 27, 1983, the Lake-Porter Leadership Council and/or Lake-Porter Leadership Council, Inc. published in the Spring issue of the Lake-Porter Leader, an article entitled "Court Corruption in Indiana Courts" authored by Elmer L. Jacobsen.

11. The article "Court Corruption in Indiana Courts" contained each of the following statements:

a. 'Prior to the appointment of Alfred J. Pivarnik to the Indiana Supreme Court in 1977, I had personally submitted to each of the seven members of the Indiana Judicial Qualifications Commission a 56-page documented and sworn complaint in writing setting out, by separate specifications, the activities and conduct of Alfred J. Pivarnik of Porter County, Indiana demonstrating his lack of fitness and qualifications to sit or act as a judge of any duly authorized court, and constituting reason and ground for his removal as judge of the Porter Circuit Court.'

b. 'The inseparable ties between vice and politics have increased with rapid strides to the point where the administration of justice in the Porter Circuit Court has come under severe scrutiny.

In making these charges, complainant (hereinafter referred to as Jacobsen) emphasizes that nothing herein is intended to reflect in any way upon other judicial officers in Porter County. * * * It is Jacobsen's opinion that the superior court judges other than Judge Pivarnik are and have been men of high honor, capacity, and ability.'

c. 'One of the major frauds in which Judge Alfred J. Pivarnik was involved was signing on April 30, 1975 the 'clean bill of health' findings submitted by an East Chicago law firm, Given, Dawson and Cappas relative to the fraudulent 5.3 million dollar contract of November 12, 1974 between the Metro Construction and the East Chicago Board of Parks and Recreation. Pivarnik had full knowledge of the fraud when he signed the findings.'

d. 'In an effort to prevent an investigation of the facts and circumstances under which he signed the findings of April 30, 1975 in the Metro case, acting in collusion with certain members of the bar and acting contrary to law, Porter Circuit Judge Alfred J. Pivarnik violated his oath of office in several particulars including 1) unlawfully jailing his critics or driving them from the state, 2) blocking their appeals by entering an order prohibiting the court clerk from preparing records on appeal, 3) closing his court to certain litigants by directing the clerk not to receive their praecipes, pleadings or court papers, 4) breaking up a lawful picket line and suppressing free speech, 5) causing indictments to issue without probable cause, 6) intimidating witnesses to abuse of his judicial office, 7) knowingly entertaining a collusive lawsuit through a fraudulent declaratory judgment, and 8) conspiring with certain Lake County lawyers to use his judicial power to destroy the Northwest Indiana Crime Commission when it undertook to investigate and expose his judicial misconduct.'

e. 'In addition, the Indiana Judicial Qualifications Commission was informed in detail of numerous specific instances of violation of the Indiana Code of Judicial Conduct on the part of Circuit Judge Alfred J. Pivarnik.'

f. 'During that congressional campaign Mr. Crumpacker relentlessly exposed to the voters of his first district the corruption of the judicial system in Lake County and its continuing connection with the crime syndicate. His exposure included also former Porter Circuit Judge Alfred J. Pivarnik, who by then had been safely ensconced on the Indiana Supreme Court.'

12. Each of the above statements in sub-paragraphs a-f of paragraph 11 are false.

13. Each statement in sub-paragraphs a-f of paragraph 11 are defamatory.

14. Elmer L. Jacobsen knew at the time he wrote the article "Court Corruption in Indiana Courts" that each of the statements in sub-paragraphs a-f of paragraph 11 were false.

15. Martin Henrichs knew at the time the Lake-Porter Leader published the article "Court Corruption in Indiana Courts" that each of the statements in sub-paragraphs a-f of paragraph 11 were false.

16. Neither Martin Henrichs nor any of the Lake-Porter Leader staff made any effort to verify the truth or falsity of the above statements in sub-paragraph a-f of paragraph 11 prior to publication.

17. Elmer L. Jacobsen made no effort to verify the truth or falsity of the above statements in sub-paragraph a-f of paragraph 11 prior to publication.

18. On or about May 24, 1983, plaintiff Alfred J. Pivarnik did notify the Lake-Porter Leadership Council, Martin Henrichs and the Lake-Porter Leader in writing specifying the statements which plaintiff complains of as being false and defamatory.

19. No member of the Lake-Porter Leadership Council, Lake-Porter Leadership Council, Inc. or the Lake-Porter Leader made an effort to check the truth or falsity of the above statements in paragraph 11 a-f.

20. Elmer L. Jacobsen never contacted plaintiff Alfred J. Pivarnik prior to or after publication to check the truth or falsity of the above statements in paragraph 11 a-f.

21. Martin Henrichs never contacted Alfred J. Pivarnik prior to or after publication to check the truth or falsity of the above statements in paragraph 11 a-f.

22. Members of the Lake-Porter Leader staff never contacted plaintiff Alfred J. Pivarnik prior to or after publication to check the truth or falsity of the statements.

23. No retraction was ever made by the Lake-Porter Leader.

24. The above statements in sub-paragraphs a-f of paragraph 11 adversely affect plaintiff Alfred J. Pivarnik in his profession as lawyer and Justice of the Supreme Court of Indiana.

25. The article "Court Corruption in Indiana Courts" was distributed to and read by members of the general public in Lake, Porter and other counties.

26. Elmer L. Jacobsen has previously been jailed by Alfred J. Pivarnik for contempt of court.

27. The contempt of court citation of Elmer L. Jacobsen was upheld on appeal.

28. Elmer L. Jacobsen has been involved in litigation against plaintiff Alfred J. Pivarnik, his family and his attorneys in at least four (4) actions during the last eight (8) years.

29. Elmer L. Jacobsen is a member of the Fairhaven Baptist Church.

30. Martin Henrichs is a member of the Fairhaven Baptist Church.

31. Elmer L. Jacobsen is a member of the Posse Comitatus.

32. Martin Henrichs is a member of the Posse Comitatus.

33. Defendant Lake-Porter Leadership Council, Inc., Martin Henrichs and Elmer L. Jacobsen did not seek the advice of a licensed attorney prior to publication of the Spring 1983 issue of the Lake-Porter Leader with...