concurring in part and dissenting in part:
I concur only with the decision of the majority to affirm the dismissal of the complaint as to defendant SEN. I dissent from the affirmance of the dismissal as to the other defendants.
The majority properly determines that the statement attributed to Carr in paragraph 10 of the article charges Owen with conduct imputing a lack of integrity in performance of his professional duties. However, it then concludes that, in the context of the entire article, the language of paragraph 10 can be given a reasonable interpretation that Carr was merely stating what the allegations of the complaint were in the suit brought by Judge Starnes against Owen. Accordingly, the majority holds that the conduct attributed to the various defendants cannot be found to be defamatory. I disagree.
The allegations against Carr are that he made an oral statement to Ranii with the knowledge that Ranii would publish the statement. If the intent of the complaint is to charge Carr merely with slander, then, whether the innocent construction rule can be applied to Carr’s statement would depend upon the entirety of the statement. As that is not set forth in the complaint, the question was not reached by Carr’s motion. If the complaint was intended to allege slander, the complaint was erroneously dismissed as to Carr. However, as stated by the majority, it appears that the intent of the complaint was to charge Carr with libel based upon his having made the statement with knowledge that it would be published. If this is so, the statement must be judged in its published form just as it is in regard to defendants Ranii and NLJ.
I cannot give a reasonable interpretation to paragraph 10 of the article which is not defamatory to Owen. I cannot construe the paragraph as indicating that either Ranii, in writing the article, or, Carr, in talking to Ranii, was merely reciting the nature of the allegations of the complaint.
Paragraph 8 of the article begins with the words: “Mr. Carr said his client, who could not be reached for comment, first learned of the allegation of misconduct when the board notified him ***.” This language clearly indicates that the writer was speaking of an interview with Carr and reporting purportedly factual matters related to him by Carr. The balance of paragraph 8 and all of paragraph 9 give further factual background about the lawsuit. Carr’s alleged statement in the first sentence in paragraph 10 could be taken as merely his opinion of the case, but the second sentence reports a direct statement by Carr as to Owen’s intent and motive in filing the complaint with the Judicial Inquiry Board. I cannot place this statement in a context of Carr merely explaining to Ranii what Judge Starnes’ complaint alleged. The statement in the first sentence of the next paragraph that “[similarly, Mr. Carr alleged in the Alton Telegraph case” does not negate the clear imputation that Carr was making a factual statement to Ranii in speaking of Owen’s intent in making the complaint.
The majority determines that the otherwise defamatory nature of a statement attributed to Carr and published by Ranii and NLJ concerning Owen’s intent and motive is negated by (1) the statements in the article that Carr’s statement is disputed, and (2) the sophistication of NLJ readers. I am unaware of a case which relieves a writer or publisher from responsibility for publishing such a statement by also indicating that others disagree with the statement. While the sophistication of the lawyer-readers of NLJ would tend to make them less likely than others to believe a statement merely because it was published, those same readers would be more likely to understand the distinction between a lawyer stating the contentions of a complaint he had filed on behalf of a client and a lawyer making a flat statement as to the motive and intent of the defendant in that suit in engaging in the conduct out of which the suit arises.
Carr cites only the “innocent construction rule” in support of the action of the circuit court. Ranii and NLJ cite other reasons which, according to them, also justify the dismissal as to them. As the trial court did not pass on these contentions, and they were not discussed by the majority, no extensive discussion is desirable here. The neutral reportage privilege (Krauss v. Champaign News Gazette, Inc. (1978), 59 Ill. App. 3d 745, 375 N.E.2d 1362) depends upon the story accurately conveying the information presented. According to Ranii’s deposition and affidavit, Carr’s statement to him was couched in terms of the matters related to him as being Judge Starnes’ position in the case brought by Judge Starnes. Thus, a question of fact existed as to whether the story accurately conveyed the information furnished by Carr. Every other privilege claimed by these media defendants is one that requires that the publication be without malice. I consider malice to have been adequately pleaded.
Appendix
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