Judicial Rulings

Don't speak in parables: a question of libel

THE BERWYN City Council lost its libel case against the Chicago Sun-Times, but apparently still has a case against the Berwyn city clerk, now a legislator, under a summary judgment upheld by the Illinois Supreme Court October 17.

The case, Joseph G. Catalano et al. (the aldermen), v. Robert G. Pechous (the clerk) et al., stemmed from the council's awarding of a garbage collection contract in January 1976. In a May 1976 story in "Suburban Week," a Sun-Times supplement pubhshed by Field Enterprises, Inc., reporter Mark Fineman quoted Pechous on the awarding of the contract, as saying, "... I think 240 pieces of silver changed hands — 30 for each alderman." Fineman and Field were co-defendants. Pechous was subsequently elected to the lUinois House in 1976 (D., Berwyn), and reelected in 1978 and 1980.

The Cook County Circuit Court, in its summary judgment, found in favor of Pechous, Fineman and Field, and against the Berwyn aldermen. The First District Appellate Court, however, found in favor of the aldermen, but only in the judgment against Pechous. The aldermen appealed to the Illinois Supreme Court, which upheld the appellate court.

The aldermen had charged Pechous with defamation and malice, saying that Pechous' statement was intended to convey the idea that the aldermen were bribed to award the contract.

Pechous' defense was that his statement was protected by executive privilege, that it was not defamatory, and that the aldermen had not proved mahce, that is, that he made the statement with reckless disregard for its truth or falsity.

The high court dismissed Pechous' claim to executive privilege: as city clerk, his duties connected with the awarding of the contract were "ministerial."

The high court held, however, that Pechous' statement was defamatory and malicious.

In the majority opinion. Justice Daniel P. Ward said, "This remark was of course not made in a literal sense. As Pechous himself states in his motion for summary judgment, the allusion to Judas' betrayal of Christ was intended to convey the thought that the plaintiffs received something of value in exchange for voting to award the contract . . ., and had thereby betrayed the pubhc trust. It is not important that the statement fails to charge the criminal offenses of bribery or official misconduct with the precision of an indictment .... The plaintiffs were accused of venality, and such a charge would be hurtful to them." Ward said the court concluded that Pechous made the statement on the basis of his personal feelings; that he had no evidence; that he did not try to find any evidence; that in fact he did not know whether the aldermen had been bribed.

"Under these circumstances, Pechous' statement, if not indeed a 'calculated falsehood,' was, at the least, made with reckless disregard of whether it was true .... His affidavit did not unquahfiedly declare that he believed his statement to be true. Even if it had done so, we question whether it would negate the showing of actual malice," Ward said.

The aldermen also charged Fineman and Field with defamation and mahce; the high court disagreed.

Fineman and Field contended that Pechous' statement was an opinion that could be interpreted to mean that the aldermen merely "acted contrary to the public interest and out of political motives." Ward said the Constitution protects opinions only if they charge public officials with wrongdoing in a general sense. He pointed out that Pechous' statement specifically charged the aldermen with bribery.

Ward said that the reporter and paper, normally protected on stories about public officials, were liable only if they knew, or strongly suspected, that Pechous' statement was not true at the time they published it. Based on the evidence presented, the court concluded they did not know. The aldermen had relied on Fineman's notes as evidence, which the court said did not hold up to the judicial standard of "convincing clarity." "It is not possible from the notes alone to identify an item as a statement made by the interviewee as opposed to what may be a question or a supposition in the mind of Fineman. These notes do not speak for themselves .... The plaintiffs' evidence falls far short of that standard." Ward said the fact that Pechous' statement was found to be defamatory and malicious did not implicate the paper in any way.

Ward went on to point out that, curiously, the question of whether Pechous' statement was true or false remained unresolved, despite the summary judgment upheld against him. In an apparent admonition, Ward reminded the aldermen that they cannot collect damages, should they bring further action against Pechous, unless they can prove his statement false.

Appellate review of sentencing limited to court's rule

THE ILLINOIS Supreme Court has ruled unconstitutional 1978 provisions of the Illinois corrections code that give appellate judges power to increase or decrease a prison sentence, or substitute an alternative. In reviewing sentences, appellate judges are bound only by the court's rule which allows only reduction of sentences. The high court said, in its October 17 ruling, that the legislative provision violates separation of powers, specifically the judiciary's right to govern sentencing by its own rules.

The case was The People v. Craig Lee Cox, who was convicted in Macon County Circuit Court of reckless homicide in a 1978 drunk driving incident. Cox was sentenced to two years in prison. The Fourth District Appellate Court reduced Cox' sentence to three months in jail and 30 months probation. The Supreme Court reversed the appellate court, upholding the circuit court's original sentence.

The 1978 provisions to the state corrections code, state that in all felony appeals "there is a rebuttable presumption that the sentence imposed by the trial judge is proper." And the provisions give appellate judges the power to "enter any sentence that the trial judge would have entered, including increasing or decreasing the sentence or entering an alternative sentence to a prison term" (///. Rev. Stat. 1979, ch. 38, sec. 1005-5-4.1). In addition, the provisions require additional information in the pre-sentencing report, require enumeration of aggravating and mitigating factors and require judges to say why they handed down a particular sentence.

In delivering the high court's opinion. Justice Thomas E. Kluczynski pointed to the court's previous rulings in which it said that its Rule 615 does not give appellate judges the power to reduce a sentence from imprisonment to probation: People v. Rege (1976), 64 111. 2d 473, 482; People v. Bolyard (1975), 61 111. 2d 583, 589; and People ex rel. Ward v. Moran (1973), 54 111. 2d 552, 556.

"Judicial power is not defined in the Constitution," Kluczynski said, "but all such power is exclusively and exhaustively granted to the courts .... If the power [in question] is judicial in character, it necessarily follows that the legislature is expressly prohibited from exercising it .... It is equally clear that this court possesses the rulemaking authority to regulate the trial of cases . . . and the authority to regulate appeals .... Although it is true that the legislature has the power to enact laws governing judicial practice . . ., where a rule of this court and a statute on the same subject conflict, the rule will prevail."□

February 1981/Illinois Issues/28