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Monday, July 24, 2006

Ind. Decisions - More on: Ruling stands in favor of Clinton mayor, against newspaper [Updated]

The Indianapolis Star has posted an AP story containing a few more details on the Not for Publication 10/28/05 Court of Appeals decision in the case of The Daily Clintonian, George B. Carey, and Concerned Citizens. The Supreme Court last week denied transfer to the case. See this morning's ILB entry here.

The AP story reports:

The state Supreme Court has let stand a jury’s $235,000 award to a mayor who sued a western Indiana newspaper that published a political ad accusing him of wrongdoing.

The state Court of Appeals in October upheld the award, ruling that George B. “Sonny” Carey acted with malice in publishing the April 2002 advertisement in The Daily Clintonian.

The Supreme Court last Thursday declined to hear the case, leaving the outcome unchanged. * * *

The ad accused Clinton Mayor Ron Shepard of misusing city money in refinancing a fire truck and failing to negotiate new rates with Clinton Township Water Co.

Shepard claimed the advertisement was false and defamatory. The newspaper declined to publish a retraction, and Shepard sued Carey, The Daily Clintonian and an unregistered political action committee identified only as Concerned Citizens.

Carey, who also is president of Clinton Township Water Co., denied any involvement with the advertisement and refused to identify the person who had placed it.

A Vermillion Circuit Court jury in 2004 awarded Shepard $225,000 in compensatory damages and $10,000 in punitive damages from The Daily Clintonian.

In upholding the damages, the appeals court said Carey had stipulated before trial that The Daily Clintonian had published the advertisement accusing Shepard of abusing his office. But he later testified he did not think Shepard had committed a crime, the judges noted.

That last paragraph confuses me. Of course, if the Court of Appeals decision was online, it would be easy enough to review the opinion.

The ILB will try to obtain a copy from the Clerk of the Court's office.

[Updated 7/25/06] Here is more about the NFP Court of Appeals ruling, quoted with permision from a November 2005 issue of Indiana Legislative Insight. The intro is "The Indiana Court of Appeals hands down a pair of rulings in cases involving political libel.

In The Daily Clintonian v. Shepard, No. 83A01-0403-CV-97, a Not for Publication opinion, the Court of Appeals affirms a Vermillion County Circuit Court jury verdict of $225,000 in compensatory damages and $10,000 in punitive damages in favor of Clinton Mayor Ron Shepard (D) against George B. “Sonny” Carey, owner and publisher of The Daily Clintonian. Mayor Shepard sued the paper for publishing an anonymous advertisement on April 26, 2002 which reviewed certain city actions and included the line “Abuse of office is a criminal offense.” Mayor Shepard informed the paper that he believed those accusations – that he had “Committed abuse of office as a criminal offense” to be “libelous per se under Indiana law,”and demanded that the paper print a retraction. After the paper refused, Shepard filed suit. Before the trail, Carey and Shepard stipulated to a series of facts, including that the paper “published a paid political advertisement to its 5,400 readers which accused [Shepard] of the crime of abuse of office.” Carey, through his attorney, former Senate Democratic Leader Robert F. Hellmann, argued on appeal that Shepard assigned an erroneous meaning to the sentence about abuse of office complained of in the ad. However, the appellate panel found, the stipulations were binding. “Carey stipulated that the advertisement accused Shepard of a crime, and he cannot now argue that the advertisement did not accuse Shepard of a crime. The stipulation, coupled with Carey’s own testimony, demonstrates he acted with actual malice in publishing the advertisement .... “Having stipulated the advertisement he published accused Shepard of a crime, Carey testified that when he published the advertisement, he did not think Shepard had committed a crime. In other words, he ‘in fact entertained serious doubts as to the truth’ of the advertisement,” the judges write, citing the well-known 1999 Bandido’s libel ruling issued by the Indiana Supreme Court. “This is sufficient to demonstrate Carey’s reckless disregard of truth or falsity of the advertisement and to support a finding of actual malice.” Carey posts a letter of credit to protect the judgment, and plans to seek transfer.

In Shine v. Loomis, No. 02A03-0412-CV-575, Allen County Republican Party Chair Steve Shine prevails in a case in which 2002 Allen County Prosecutor candidate Mike Loomis accused him of defamation of character in 2003 for suggesting that Loomis, as a deputy prosecutor, used “the prosecutor’s office as a vendetta against minorities and the multicultural community.” While an Miami Circuit Court Judge Bruce Embrey, sitting as a special judge, ruled that the case should proceed to trial to determine whether Shine acted with “actual malice,” the appellate court found that Loomis failed to prove that Shine made a defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Judge Michael Barnes files an intriguing concurring opinion, “to express both my concern and reservation that the First Amendment shields the conduct and speech described here. The chairman of a political party made a false statement to a media outlet about a candidate whom he did not support in a primary election. This statement accused the candidate of racially intolerant behavior. The charge was clearly incendiary particular in this context. ‘Coincidentally,’ this statement received widespread media coverage and, perhaps not so ‘coincidentally,” the candidate lost the primary election to the candidate favored by the chairman.” he refers to “the hardball politics seeping through the entire fabric of this case,” but agrees that Loomis failed to prove actual malice here.

The Shine v. Loomis opinion was a published opinion and was covered by the ILB at the time. Here is a Nov. 1, 2005 entry headed "Ruling today turns on a showing of actual malice." The opinion was written by Senior Judge Ratiff, with J. Sharpnack concurring and J. Barnes concurring with separate opinion.

(BTW, I hadn't known until recently that senior judges write opinions, but don't vote.)

And here is an ILB entry from the following day, Nov. 2nd, quoting from a Fort Wayne Journal Gazette story that begins:

The Indiana Court of Appeals today dismissed a lawsuit accusing Allen County’s Republican Party chairman of defaming a former candidate for prosecutor.

Even though the three-judge panel unanimously sided with Steve Shine against Mike Loomis, Judge Michael P. Barnes in his concurring opinion wrote to “express both my concern and reservation that the First Amendment shields the conduct and speech” at the center of the controversy.

Posted by Marcia Oddi on July 24, 2006 07:02 PM
Posted to Ind. Sup.Ct. Decisions