Monthly Archives: May 2010

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Former Virgin Islands Judge Wins Defamation Case Against Newspaper and Reporters

On March 16, 2010, a jury in the Superior Court of the U.S. Virgin Islands in St. Thomas returned a verdict in favor of retired U.S. Virgin Islands Superior Court Judge, Leon Kendall, finding that Judge Kendall was defamed in articles published by the V.I. Daily News.  The jury returned a verdict in the amount of $240,000, finding that the articles were published with actual malice.  The 16 articles in question reported on Judge Kendall’s bail decisions involving criminal defendants and charged, in substance, that Judge Kendall released violent criminals out on bond and gave them the opportunity to commit further violent crimes, including, in one case, the murder of a 12 year old girl.  As a consequence of the newspaper’s allegations, a vigorous campaign was initiated in the community calling for Judge Kendall’s resignation.  However, the evidence showed that no history of violent conduct or propensity to engage in violent conduct had been presented to Judge Kendall at the time of the bail hearings.  In addition, despite Judge Kendall’s presiding over more than 600 bail decisions, none was ever appealed by prosecutors. Moreover, 98% of the defendants who were let out on bond fully complied with the conditions and terms of the bail orders.  The jury agreed with the plaintiff that defendants published false and defamatory statements with actual malice.  The newspaper has stated that it intends to appeal the judgment.

The case is the second in recent years where a judge has prevailed in a defamation lawsuit based upon media statements critical of  judicial conduct and overcoming the actual malice standard applicable to public officials.  In 2007, Justice Robert R. Thomas, of the Illinois Supreme Court, was awarded a $7 million dollar jury verdict (subsequently reduced), arising from critical statements appearing in a local newspaper.

Illinois Reaffirms that Statements Made to Law Enforcement Personnel Are Protected by an Absolute Privilege

In Morris v. Harvey Cycle and Camper, Inc., the court reaffirmed that Illinois absolutely protects statements made to law enforcement officials from claims of defamation.  The court noted that the majority of states afforded at most a qualified or conditional privilege to such statements  and that many jurisdictions had abandoned absolute privilege in favor of a conditional privilege, which would be lost in the event of a direct intent to injure or constitutional malice.   The court noted that most of the prior Illinois decisions affording an absolute privilege to statements made to police personnel were analogous to absolutely privileged statements made in the course of or preliminary to judicial proceedings.  In Morris, the facts suggested that the statements were made not to commence legal proceedings, but to use strong arm tactics by car dealer personnel to recover a car without refunding the plaintiff’s down payment.

The motivation for the making of the statement, however,  is irrelevant when an absolute privilege applies.  Therefore, the statements made to law enforcement could not form the basis of a defamation action and the claim was dismissed.

Illinois Supreme Court Limits Pleading on Information and Belief in Defamation Cases

On September 24, 2009, the Illinois Supreme Court significantly limited the use of allegations based upon “information and belief” in defamation cases.  Green v. Rogers.  In Green, multiple statements were attributed to the defendant on “information and belief.”  It was alleged that the statements constituted defamationper se.  In finding that the statements, as pled, could not constitute defamation per se, the Court reaffirmed that “although a complaint for defamation per se need not set forth the allegedly defamatory words in haec verba [i.e., word for word], the substance of the statement must be pled with sufficient precision and particularity so as to permit initial judicial review of its defamatory content.”  The Court held that the statements were not pled with sufficient particularity to permit judicial review or the formulation of an answer and potential affirmative defenses.  The Court reiterated that summaries of the types of statements allegedly published are insufficient to state a cause of action for defamation.  The Court found that generic descriptions are insufficient because “without knowing what specific conduct defendant allegedly averred, we have no way of assessing whether defendant’s words were defamatory per se.”  Moreover, the Court found, that if defamation pleadings are based upon “information and belief,” the basis for such information and belief must be set forth in the Complaint.  The Court held that a defamation per se claim must be pled “with a heightened level of precision and particularity” because actual damages need not be proven.  “[I]f a plaintiff does attempt to avail himself of the extraordinary presumption that attaches to a defamation per se, he simply must plead the relevant facts on something more than his mere ‘belief.’”  The Court explained that “the facts informing plaintiff’s belief will always be within plaintiff’s direct knowledge and therefore fully capable of being pled with the requisite precision and particularity.”

Illinois is a fact-pleading jurisdiction.  The Green decision is consistent with long standing Illinois law requiring the pleading of facts with particularity.  Significantly, Green does not preclude the pleading of defamation actions on information and belief.  Rather, it merely requires that the basis of such information and belief be specifically set forth in the Complaint. This requirement will protect against defamation lawsuits proceeding based upon a plaintiff’s subjective spin of what, in fact, was published and may also serve to reduce the filing of certain meritless claims.