Jamerson v. Anderson Newspapers, Inc., 1-1282A342

• Docket Nº: No. 1-1282A342
• Citation: 469 N.E.2d 1243
• Case Date: November 01, 1984
• Court: Court of Appeals of Indiana

Page 1243

469 N.E.2d 1243

Paddy P. JAMERSON, Plaintiff-Appellant, v. ANDERSON NEWSPAPERS, INC. and Jeff Evans, Defendant-Appellees.

No. 1-1282A342.

Court of Appeals of Indiana,

First District.

Nov. 1, 1984.

Richard E. Kreegar, Chesterfield, Ronald K. Fowler, Anderson, for plaintiff-appellant.

Robert P. Johnstone, Michael Rosiello, Barnes & Thornburg, Indianapolis, for defendants-appellees.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Paddy Jamerson (Jamerson) appeals the judgment of the Henry Circuit Court that he take nothing in his libel and slander and conspiracy to libel action against defendant-appellees Anderson Newspapers, Inc. and Jeff Evans, a reporter for the Anderson Herald.

We affirm.

STATEMENT OF THE FACTS

Paddy Jamerson was formerly the Chief of Police of Anderson, Indiana from 1972-1979. During his tenure as Chief, the defendant newspapers, and Jeff Evans, a reporter for one of the papers, published a series of articles about the Anderson Police Force and Chief Jamerson which Jamerson considered to be defamatory. Jamerson alleged that the publication of the articles resulted in an investigation of his activities by the IRS as well as by a special Task Force established by a Madison County Grand Jury. Jamerson contends that the content of the articles and its repercussions ultimately forced him to leave his profession as a police officer.

Jamerson filed suit against the newspapers and Evans for compensatory and punitive damages for libel and slander and conspiracy to libel on June 11, 1981. His amended complaint referred to various articles appearing in the newspapers over a period of nine years, alleged the injuries to the plaintiff resulting therefrom and prayed for $518,900.00 compensatory damages and punitive damages of $1,500,000.00.

In July 1981, the plaintiff filed a motion to compel the newspapers and Evans to reveal their unnamed sources. Defendants In order to mitigate the severity of the shield law, the trial court entered a pre-trial order on April 27, 1982 which required the newspapers and Evans to elect as to whether to maintain the newsman's privilege under the shield law or to forego the use of testimony during the trial relating to their sources and information obtained from the sources. Defendants elected to maintain the use of the shield law. ¹

refused, setting forth the Indiana Shield Statute, IND.CODE 34-3-5-1, as a defense. The trial judge denied Jamerson's motion. Jamerson again attempted to force the newspapers and Evans to reveal their sources by filing a motion in limine just prior to trial; the motion requested that in light of the trial court's previous ruling on the motion to reveal sources, the court should find that defendants not be permitted to (a) introduce any evidence concerning the unnamed source; (b) in any way introduce evidence that said sources ever existed; or (c) introduce evidence that they relied on the sources in the publication of any of the complained of articles. The motion further asked that the trial court invoke a presumption that the defendants had no source or sources.

The case was tried to the court without a jury and at the close of the plaintiff's evidence, the defendants filed a motion for involuntary dismissal pursuant to Ind.Rules of Procedure, Trial Rule 41(B). The trial court granted dismissal as to several of Jamerson's claims, holding that the plaintiff failed to meet his burden of proof as to the dismissed claims. At the close of all the evidence, defendants renewed their T.R. 41(B) motion as to the remainder of Jamerson's claims, and the trial court granted the motion. The trial court dismissed some of the claims because Jamerson failed in proving that the statements were published by the newspapers with knowledge of falsity or reckless disregard of whether the statements were false or not. See N.Y. Times Co. v. Sullivan, (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, infra. Some of the claims were dismissed because the trial court found they were opinions and therefore privileged; some claims were dismissed because Jamerson failed to prove that the statements concerned him personally. As to others, the trial court determined that Jamerson failed to prove that they were false.

In reviewing Jamerson's damage claims, the trial court decided that the plaintiff did not prove that the supposedly defamatory statements proximately caused his alleged special damages. The trial court concluded that even though, at most, the plaintiff would be entitled to recover nominal damages for injury to reputation, he still failed to establish liability on defendants' part and thus defendants were entitled to judgment on Jamerson's nominal damages claim. Further, the evidence at trial was insufficient to support an award of punitive damages against either defendant.

Judgment was entered that Jamerson take nothing in the action.

ISSUES

On appeal, Jamerson raises seven issues, some of which we have attempted to restate and consolidate:

I. Did the trial court deny Jamerson a fair trial when it refused to compel defendants to produce their sources and refused to invoke a "no source" presumption?

II. Does the shield law grant the news media an absolute privilege not to reveal their sources?

III. Does the shield law violate article one, section 12 of the Indiana Constitution?

IV. Did the trial court apply an improper standard of proof to Jamerson's conspiracy claim?

V. Did the trial court err in determining that opinions are constitutionally protected?

I. Fair Trial.

The trial court did not err in denying Jamerson's motion to compel sources. Jamerson's entire basis for his allegation of an unfair trial consists of criticism of the current state of libel law; that is, the heavy burden of proof imposed on a plaintiff established by N.Y. Times v. Sullivan, (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. Since N.Y. Times, the plaintiff has the burden of showing that a statement was made with "actual malice", "with knowledge that it was false or with reckless disregard of whether it was false or not". N.Y. Times, supra, at 279, 84 S.Ct. at 726. A subsequent decision refined the definition of actual malice, St. Amant v. Thompson, (1968) 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262, distinguished between public officials and private citizens in terms of protection allowed, Time, Inc. v. Firestone, (1976) 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154, and determined that redress for injury to reputation is not a right protected by the U.S. Constitution, Paul v. Davis, (1976) 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405.

Jamerson asserts that since the N.Y. Times decision was handed down, there has been a number of evidentiary problems, and recent decisions have attempted to strike a balance between the public official's right to maintain an action and the media's right to a free press. He correctly cites Herbert v. Lando, (1979) 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 and Branzburg v. Hayes, (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 as Supreme Court decisions which struck a balance between the competing interests and determined that the First Amendment mandates a "qualified privilege" for newspeople. In the latter decision, for the first time, the Supreme Court considered the question of whether the First Amendment affords a constitutional testimonial privilege to a newsman so that he is not required to respond to a grand jury subpoena. Branzburg, supra. The Supreme Court refused to grant such a privilege; however, Jamerson neglects to state that the Branzburg decision specifically left state legislatures free to create their own newsman's privilege, whether qualified or absolute:

"There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to require a newsman's privilege, either qualified or absolute."

Branzburg, supra, at 706, 92 S.Ct. at 2669.

Similarly, in Herbert v. Lando, supra, the Supreme Court had the opportunity to fashion an absolute privilege under the First Amendment in a defamation case and again declined to do so. The court used a balancing approach in determining that the journalists did not have an absolute constitutional privilege not to answer. Id. 441 U.S. at 169, 99 S.Ct. at 1645.

IND.CODE 34-3-5-1, our shield law, confers, without a doubt, an absolute privilege on the news media. ("Any person ... connected with a newspaper ... shall not be compelled to disclose in any legal proceeding or elsewhere the source of any information procured or obtained in the course of his employment ....") Jamerson himself concedes the shield law is absolute. No Indiana decisions have, as of yet, pared down this absolute privilege except to state that it is personal to the newsman. See, e.g., Hestand v. State, (1971) 257 Ind. 191, 273 N.E.2d 282.

Jamerson also alleges that the proper approach to the "problem" created by the absolute privilege, and the method which the trial court refused to adopt, is to impose a "no source" presumption on a defendant who elects to maintain the privilege.

The use of the "no source" presumption apparently first occurred in Downing v. Monitor Publishing Co., (1980) 120 N.H. 383, 415 A.2d 683. Downing involved an interlocutory appeal from a trial court's granting of plaintiff's motion to compel discovery of defendant's unnamed sources and the defendant's subsequent refusal to disclose those sources.

Relying on the reasoning of Herbert and Branzburg, the Supreme Court of New Hampshire stated:

"It is untenable to impose the heavy New York Times burden of proof upon a plaintiff and at the same time prevent him from obtaining...