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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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