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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. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

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  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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