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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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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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