Ware v. Carey
Decision Date | 27 August 1979 |
Docket Number | No. 78-540,78-540 |
Citation | 394 N.E.2d 690,75 Ill.App.3d 906 |
Parties | , 31 Ill.Dec. 488 Mitchell WARE, Plaintiff-Appellant, v. C. Bernard CAREY, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, Defendants-Appellees. |
Court | United States Appellate Court of Illinois |
Adam Bourgeois, Chicago (Donald Hubert, Chicago, of counsel), for plaintiff-appellant.
Bernard Carey, State's Atty., Cook County, Chicago (Barry Gross, First Asst. State's Atty., and Henry A. Hauser, Asst. State's Atty., Chicago, of counsel), for defendants-appellees.
In 1973 plaintiff, Mitchell Ware, filed a complaint against C. Bernard Carey, Ralph Berkowitz, Kenneth Gillis and Nicholas Iavarone, charging defamation. After several amendments and the dismissal of various counts, plaintiff's third amended complaint was reduced to three counts (Counts I, III and X). Defendants filed their motion for summary judgment on all three counts and subsequently amended that motion. Plaintiff moved for summary judgment as to Counts I and III. On January 19, 1978, the circuit court of Cook County granted summary judgment for defendants on all counts. Plaintiff appeals that order. Because of the death of defendant Berkowitz, the action has abated as to him.
At the time of the alleged defamatory publications, plaintiff was the Deputy Superintendent of the Chicago Police Department. His responsibilities included supervision of the Intelligence Division, Internal Affairs Division, Inspections Division and Vice Control Division. Defendant, C. Bernard Carey, was the Cook County State's Attorney. The remaining defendants were assistant State's attorneys.
Count I alleges that Carey defamed plaintiff by virtue of a press release and public statement issued on September 11, 1973. It was further alleged that Carey knowingly made these false, defamatory statements. Count III alleges that Carey defamed Ware when he knowingly made false defamatory statements on a television interview show. Count X alleges that Carey and the other defendants caused the Cook County Grand Jury to issue a letter to Chicago Police Superintendent James Rochford that defamed plaintiff. Ware also alleged that defendants acted with knowledge of the falsity of the letter's contents. The circuit court entered summary judgment for defendants on Counts I and III, finding as a matter of law that actual malice did not exist. Summary judgment for defendants on Count X was also granted because there was no genuine issue of material fact that defendants caused the drafting or publication of the letter.
Ware appeals on all counts, contending that factual issues remain necessitating remandment for trial on the merits. We affirm on all counts. Further development of the facts pertaining to each count follows in connection with the contentions of the parties. I.
Count I concerns Carey's September 11, 1973, press release, which follows in its entirety:
Ware alleged that these statements were reported extensively by various Chicago newspapers, wire services and local radio and television stations. He contends that according to the plain meaning of the statement, Carey accused him of protecting and covering up police corruption.
After learning about this press release, Ware made a phone call to Carey. Ware alleged in his complaint that during this phone conversation "(t)he defendant Carey acknowledged and admitted the falsity of the statements complained of * * *."
Ware asserts that summary judgment on Count I was improper because the depositions on file established a material issue of fact as to whether Carey published his statements with actual malice (I. e., with knowledge of the falsity of his remarks or reckless disregard of whether they were false or not). Troman v. Wood (1975), 62 Ill.2d 184, 189-190, 340 N.E.2d 292.
Carey offers four responses. First, by filing a cross-motion for summary judgment on Count I, Ware conceded that no triable fact issues remained and waiver or estoppel prohibits his arguing this issue on appeal. Second, his press release is capable of an innocent construction. Third, no triable issue as to actual malice exists. Fourth, as Cook County State's Attorney, Carey is protected by an absolute privilege from defamation actions.
We find that Carey was protected by an absolute privilege from civil defamation and need not address the remaining issues.
II.
Carey maintains that the public statement which forms the basis for Count I is protected by the absolute executive privilege recognized in Blair v. Walker (1976), 64 Ill.2d 1, 349 N.E.2d 385. Alternatively, he claims the statement is non-actionable because of the doctrine of prosecutorial (quasi-judicial) immunity as defined in Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. We agree that Blair is controlling and need not discuss quasi-judicial immunity.
In Blair, plaintiffs were allegedly libeled by press releases made by Governor Walker. The Governor stated that plaintiffs used a corporate front and legal technicalities to obtain the home of a "helpless woman" through a foreclosure sale. He accused plaintiffs of violating real estate broker licensing laws and characterized them as "unscrupulous." The Governor further stated that he had instructed the Department of Registration and Education to revoke plaintiffs' real estate licenses.
The Supreme Court held that the Governor is protected from defamation actions by an absolute privilege when issuing statements legitimately related to matters committed to his responsibility. Plaintiffs contended that since the Governor had no express authority to license real estate brokers, he had acted beyond the scope of his duty. The court reasoned that the Governor did not violate the inherent, discretionary authority of his office by informing the public of actions he had directed be instituted against plaintiffs. The Governor's duties include supervision of the Department of Registration and Education. Department officers are his subordinates. If the Governor's statements had been communicated to Department officials, they clearly would have been absolutely privileged. The court also believed that the Governor did not exceed the bounds of his duty in communicating this message to his constituency.
Carey asks us to extend the...
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Hobbs v. Cappelluti
...rendered by public officials, and free and unfettered action by the public's representatives." Ware v. Carey, 394 N.E.2d 690, 697, 75 Ill. App. 3d 906, 31 Ill. Dec. 488 (Ill. App. Ct. 1979).The need to facilitate open communication between the public and its elected representatives weighs i......
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Patterson v. Burge, 03 C 4433.
...Attorney's Office have an absolute privilege to comment on issues within the scope of their employment. Ware v. Carey, 75 Ill.App.3d 906, 913, 31 Ill.Dec. 488, 394 N.E.2d 690 (finding state's attorney immune from a state law suit for defamation based on comments "arising from the performanc......
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Hobbs v. Cappelluti
...rendered by public officials, and free and unfettered action by the public's representatives.” Ware v. Carey, 394 N.E.2d 690, 697, 75 Ill.App.3d 906, 31 Ill.Dec. 488 (Ill.App.Ct.1979). The need to facilitate open communication between the public and its elected representatives weighs in fav......
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People v. Williams
...activity when it is not adequately dealt with by other agencies." ABA Standard 3-3.1(a) (1980). See also Ware v. Carey (1979), 75 Ill.App.3d 906, 914, 31 Ill.Dec. 488, 394 N.E.2d 690. Based upon the record before us, and these several considerations, we fail to see how the State's Attorney ......