Sauber v. Gliedman
| Decision Date | 12 December 1960 |
| Docket Number | No. 13002.,13002. |
| Parties | Ernest J. SAUBER v. Howard B. GLIEDMAN. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barnabas F. Sears, Lloyd J. Tyler, Jr., James N. Kosmond, Chicago, Ill., for plaintiff-appellant.
Robert Tieken, U. S. Atty., Chicago, Ill., Robert Kramer, Asst. Atty. Gen., George Cochran Doub, Asst. Atty. Gen., Morton Hollander, Herman Marcuse, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and GRUBB, District Judge.
This is an appeal from an order granting summary judgment for the defendant and dismissal of the cause in an action for malicious defamation.
Defendant-appellee, Howard B. Gliedman, was appointed a Special Assistant to the Attorney General of the United States for the purpose of the prosecution of plaintiff-appellant, Ernest J. Sauber, former District Director of Internal Revenue in Chicago, Illinois, who, together with four other individuals, had been indicted on charges of conspiracy to defraud the United States of income taxes due and to commit certain other offenses, which charges grew out of certain pending criminal tax evasion cases. Under his letter of authority which was filed with the district clerk on March 6, 1957, Gliedman was assigned:
"* * * to assist in the trial of the case or cases growing out of the transactions hereinafter mentioned in which the Government is interested; and in that connection you are specifically directed to file informations and to conduct in the Northern District of Illinois and in any other judicial district * * * any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates which district attorneys are authorized by law to conduct."
The transactions referred to in this letter related to possible further irregularities in the Chicago office of the Internal Revenue Service.
Gliedman took his oath of office on March 6, 1957. On the following day he held a press conference in which he explained the reasons for his appointment as well as its purpose and scope. The following statements allegedly made during this press conference constitute the claimed malicious defamation:
The second claim of the complaint alleging that the defendant requested and procured two newspapers to publish false and defamatory matter concerning Sauber was dismissed by the district court and is not in issue here.
Gliedman filed a first motion for summary judgment on the ground of absolute privilege, which motion was supported by an affidavit of Warren Olney III, Assistant Attorney General of the United States, and which states in part as follows:
This motion was denied. Relying on the cases of Barr v. Matteo, 1957, 100 U.S.App.D.C. 319, 244 F.2d 767, and Colpoys v. Gates, 1941, 73 App.D.C. 193, 118 F.2d 16, Judge Hoffman concluded that statements to the press relating to explanations of official acts or policies were attended by absolute privilege only where made by cabinet members or officers of comparable rank, and that Gliedman's duties as prosecuting attorney did not require the application of the protection of the doctrine of absolute privilege in respect to his communications to the press.
After reversal of the appellate decision in the Barr case by the Supreme Court in Barr v. Matteo, 1959, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, Gliedman renewed his motion for summary judgment based on the well pleaded allegations of fact of the complaint and on the Olney affidavit submitted for the purposes of the first motion for summary judgment.
Judge Robson, to whom the case had been reassigned, held that the Barr case controlled this action and granted the motion for summary judgment. It is this order which is being reviewed.
Upon consideration of the circumstances under which these statements were made as set forth in the complaint and its supporting affidavit, it is the conclusion of this court that Gliedman's statements to the press were absolutely privileged and that the absolute privilege attending the communications serves as a bar to any civil action for libel or slander based on said defamatory statements.
In the Barr case, the Supreme Court had before it a press release by an acting director of an executive agency, the Office of Rent Stabilization. The press release related to internal agency affairs which had received congressional notice which in turn had become the subject of press comment. The communication did not concern the official functions of the agency as such. In delineating the scope of absolute privilege attending the acts of federal governmental officials, the court set forth criteria by which the challenged acts must be judged in order to determine...
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