ILNews

Justices establish 'public interest privilege' in defamation suit

Michael W. Hoskins
January 1, 2007
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A Vigo County Schools superintendent is protected from liability for defamation relating to comments he made in 2001 about an unidentified gunman who'd fired a shotgun at him, the Indiana Supreme Court has ruled.

In a unanimous decision late Wednesday, the court followed what other states have done and adopted a public interest privilege for Indiana designed to protect certain communications for private citizens. The privilege ruling puts an end to the six-year defamation dispute involving comments Superintendent Daniel T. Tanoos made about his own attempted murder and the man he believed had committed the acts - Paul Joseph "Jay" Kelley III.

Kelley had displayed animosity toward Tanoos prior to the shooting, and when someone shot at him and a bullet grazed the superintendent's head from outside his house, police identified Kelley as a suspect. At the time, he was supervisor of safety and security at a juvenile residential treatment facility in the district. Rumors circulated, and Tanoos began working with police and at one point told Kelley's supervisor, James Sinclair, that Kelley was the likely perpetrator.

While accused by Tanoos and investigated by police, Kelley was never charged with any crime and ultimately sued Tanoos for defamation.

This opinion in Kelley v. Tanoos, (http://www.in.gov/judiciary/opinions/pdf/05020702fsj.pdf ), No. 84S01-0605-CV-195, affirms Vigo Superior Judge David Bolk's denial of Kelley's motion for summary judgment and the grant of summary judgment in Tanoos' favor. The Court of Appeals in 2005 reversed and remanded, holding that genuine issues of material fact existed regarding Kelley's defamation claim and that Tanoos' statements were not covered by a qualified privilege. The Indiana Supreme Court heard arguments in September.

Justices declined to abolish the presumption of damages in a per se defamation action and also declined to hold a common law privilege existed because Tanoos was trying to apprehend the shooter and Sinclair appeared to be "repairing strained relations" between the juvenile facility and school corporation. However, the court found that the statements were made in an effort to assist law enforcement officials in investigating the crime and that protects them.

"Accordingly, it is well established that in Indiana, communications made to law enforcement to report criminal activity are qualified privilege," Justice Frank Sullivan wrote. "This so-called public interest privilege is intended to encourage private individuals to assist law enforcement with investigating and apprehending criminals."

In the ruling, Justice Sullivan cites the Restatement (Second) of Torts Section 598 (1978), which he writes articulates a broader scope of protection than adopted in Indiana. It states: "The privilege ... affords protection to a private citizen who publishes defamatory matter to a third person even though he is not a law enforcement officer, under circumstances which, if true, would give the recipient a privilege to act for purposes of preventing a crime or of apprehending a criminal or fugitive from justice."
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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