After 45 Years, Illinois Supreme Court Opinion Still Reeks

Thursday, August 8, 2002

Page 7

PERSPECTIVES (Column)

After 45 Years, Illinois Supreme Court Opinion Still Reeks

By ROGER M. GRACE

Sometimes commentary on a news event comes a bit late. This is commentary on an Illinois Supreme Court decision that comes 45 years after the issuance of the opinion.

This might be on a par with a Broadway reviewer providing a 2002 assessment of the premier performance of The Music Man or a TV columnist sizing up the first episode of Have Gun, Will Travel. Those productions hark to 1957, like the court opinion.

Undaunted by lack of news significance or geographic relevance, and spurred by the adage, “Better late than never,” I offer observations on the opinion in People v. Goss, 10 Ill.2d 533, 141 N.E.2d 385.

It’s an opinion that’s 45 years over-due for a lambasting.

I came across that opinion in the course of penning a piece on the controversial local television personality of the mid-1950s to late 1960s, Tom Duggan. My “other” column, on nostalgia, appears on Thursdays, and today’s installment, on page 18, is on Duggan.

The personable and witty gabster, remembered here for his slamming of liberals in the early 1960s after he had turned Republican, had earlier gained wide popularity in the Chicago region as a crusader against the mob and the politicians they controlled.

The Illinois high court opinion ratified a contempt conviction of Thomas D. Goss—Duggan’s real name—based on his allegedly committing defamation. Now, even without having a keen understanding of Illinois law in the 1950s, I suspect that anyone reading that last sentence would be bewildered at how a person could be found in contempt for committing a tort.

Were the utterances made in open court, disrupting proceedings? No. Were they falsehoods made under oath, thus interfering with the administration of justice? No.

The supposed contemnor had the audacity to comment during his late-night commentary show on Chicago’s Channel 5 on matters which were the subject of pending litigation. Was this apt to influence the jury? Not likely. The litigation was a divorce proceeding.

The marriage of the Champagnes—Carl and Shirley—may have been bubbly at first, but by 1955, it had fizzled. (Sorry. It was a pun that couldn’t be resisted.) The husband sued his wife for divorce, alleging cruelty. And he sought custody of their child.

On July 28 of that year, Carl Champagne put on testimony by a private detective, one Robert Risberg, who said that he had tailed the wife; that on June 3, she spent the hours of 2:30-6:00 a.m. in Duggan’s apartment; and she was back there on June 11, from 2-5:45 a.m. That night, Duggan told viewers that Risberg was a “sneak and liar”—allegations he repeated in subsequent broadcasts.

On Aug. 1, Duggan asserted on the air that Carl Champagne was a member of a family “with court-admitted hoodlum connections,” calling his father “a known associate of hoodlums.” Duggan claimed he had been approached by Carl Champagne’s uncle and told that his name would be kept out of the case if he would “lay off the hoodlums” in his broadcasts. He said that he had promised Shirley Champagne to do everything he could to “to prevent the legal kidnapping of her child.”

The commentator disclosed in that broadcast that Carl Champagne had sued him for alienation of affections, and related in a subsequent broadcast that Risberg had sued him for slander.

Based on these facts, Cook County Superior Court Judge Daniel A. Covelli adjudged Duggan to be in indirect criminal contempt, sentencing him to 10 days in jail and a $100 fine. (The prospect of jail is what caused Duggan to come to L.A.) Covelli provided this explanation for his decision:

“The public utterances and characterizations by the said Thomas Duggan Goss of the plaintiff and witnesses called in his behalf were false, completely foreign to the evidence presented, with a positive tendency and designedly calculated to bring odium upon the testimony of the witnesses produced by the plaintiff and to inspire distrust in their testimony; engender a public atmosphere of hostility incompatible with judicial proceedings; create in the public mind by false, incompetent and prejudicial hearsay made without the safeguards of an oath or right of cross examination the belief that the plaintiff and those associated with him were of base character and that the plaintiff should not prevail in his cause; to create in the minds of witnesses fear and apprehension of being held to public scorn and ridicule and to exculpate himself from a charge amply sustained by the evidence.”

It is baffling how Covelli could have concluded that Duggan’s “public utterances and characterizations” were “false” when he barred the alleged contemnor from presenting evidence as to the truth of the statements.

In any event, if Duggan did slander Carl Champagne or his kin, or Risberg, that would provide a cause of action for damages—not a basis for a contempt charge. The notion that witnesses might be caused by Duggan’s remarks to desist from testifying or altering testimony is based on nothing more than speculation. Mere conjecture is hardly a constitutionally sufficient basis for punishing the exercise of the right of free speech.

The Prairie State’s high court, in a per curiam decision, nonetheless held that Duggan’s comments did constitute a contempt.

It brushed aside his First Amendment defense, conjuring up distinctions between the instant facts and those which pertained in the U.S. Supreme Court cases of Bridges v. California (1941) 314 U.S. 252, Pennekamp v. Florida (1946) 328 U.S. 331, and Craig v. Harney, 331 U.S. 367.

The Illinois high court declared:

“We have before us infractions that were repeated, bold and defiant, which had for their purpose an interference with an actually pending judicial determination,” the court held. “We hold therefore that the statements of the plaintiff in error constituted a clear and present danger to the administration of justice.”

The fact that the proceedings which Duggan commented upon were “actually pending” and that Duggan intended to affect the outcome did not provide justification for the adjudication. In Bridges, the Supreme Court examined contempt adjudications against Times-Mirror, as well as the publisher and managing editor of the Los Angeles Times, based on editorials which sought to affect the outcome of pending judicial proceedings. It reversed those adjudications. Justice Hugo Black wrote: “What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” He went on to say: “History affords no support for the contention that the criteria applicable under the Constitution to other types of utterances are not applicable, in contempt proceedings, to out-of-court publications pertaining to a pending case.” (Also reversed was a contempt adjudication against labor leader Harry Bridges based on a public comment that if a judge’s order were carried out, a strike would occur.)

A judge’s conjecture that Duggan’s on-the-air remarks might affect testimony of some witness or other at some stage of the proceedings patently did not entail a threat of an “extremely high” degree of an imminent “substantive evil” of an “extremely serious” sort. The holding in Bridges was bypassed by the Illinois Supreme Court based on an arrogant pronouncement that the case was not controlling. Neither was Pennekamp or Harney, the Illinois tribunal proclaimed. Those cases, it pointed out, involved attempts at coercing judges, while Duggan’s effort to intimidate was “directed to parties and witnesses, to whom there is no reason to attribute a special degree of fortitude.”

That ignores the teaching of the cases that speech concerning a case may not be deterred absent a threat to proceedings that is real, ascertainable, and exceedingly grave—not based on mere supposin’. And, the threat must be one that’s hovering over head, about to descend. In Harney, the U.S. Supreme Court said:

“The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.”

The decision in People v. Goss defied standards set forth by the nation’s highest tribunal. The contempt was not on the part of Duggan, but on the part of the members of the Illinois Supreme Court.

That court, having proclaimed in its per curiam opinion that Duggan’s conduct was contemptuous, proceeded to acknowledge that the trial judge improperly rejected a verified disqualification motion. It declared that “the judgment must be reversed and the cause remanded, with directions for further proceedings consistent herewith.”

In other for further proceedings to be “consistent herewith,” the next judge to handle the case would be obliged to hold Duggan in contempt—which is what happened. Upon remand, a hearing was held; no testimony was introduced in support of a contempt adjudication; on the basis of the record, Duggan was again found in contempt; the Illinois Supreme Court affirmed, declaring that “our prior opinion is dispositive of the points now reiterated.”

Certiorari was denied by the U.S. Supreme Court on April 17, 1961, with Justices Hugo Black and William O. Douglas voting to hear the case. It is understandable the majority did not vote to take up the case. The rules had already been laid down; the Illinois Supreme Court simply ignored those rules. A further opinion would have added nothing of jurisprudential value.

Duggan next sought relief in the U.S. District Court. A judge issued an injunction restraining the State of Illinois from arresting Duggan on the outstanding arrest warrant. However, the Seventh Circuit Court of Appeals reversed in Goss v. State of Illinois (1963) 312 F.2d 257 on the basis of lack of jurisdiction. While declining to discuss the merits of Duggan’s constitutional arguments, it did point to the remedy of a petition for writ of habeas corpus, hinting strongly that if Duggan surrendered to authorities, he’d be sprung.

Duggan was the speaker at USC’s Trojan Young Republican Club in the mid-1960s. I attended the meeting. The commentator was asked about his departure from Chicago to avoid arrest, and he had a flip response. That night on his television show, he became somewhat emotional in providing a detailed recitation of the allegations against him of adultery, and so forth. He said something along the lines of:

“But, of course, you can’t tell that to the Trojan Young Republicans.”

It was odd that he thought those of college age had never heard of adultery, or that persons in that age bracket or younger were not viewing his show that night. (I’d been watching his programs since I was about 12.)

Duggan returned to Chicago to attend his father’s funeral some time in the mid- to late-1960s, expecting to be arrested. In the end, however, the 10-day sentence was lifted. Duggan, his roots by then firmly planted in Los Angeles, flew to Chicago once a week to tape a show that was aired there on a UHF station, his welcome at Los Angeles stations having been exhausted. He wrote columns for the Herald Examiner on non-political topics.

Duggan died in Los Angeles on May 29, 1969, at the age of 53.

His antagonist, Covelli, retired in 1976 and died in Illinois five years later. He was 76.

Duggan, Chicago television’s outspoken mobster-basher, had, in essence, been run out of town by Covelli. The judge, of course, could not have known that his action would cause the convicted contemnor to flee the realm — though this was not wholly unforeseeable given that Duggan incessantly attacked “hoods,” the very persons in residence at the Cook County Jail. At any rate, Covelli was surely aware that clubbing Duggan with a jail sentence could well have had, at the least, a daunting—that is, a quieting—effect on this critic of corruption and crime.

There is no direct evidence that Covelli took on Duggan as a favor to the element Duggan was exposing—that is, “the mob.” And Duggan did not, so far as I can recall, make such an assertion.

However, information that has surfaced subsequent to Duggan’s death, if correlated with events connected with the contempt proceeding, do suggest that Covelli had such an agenda. I’ll talk about that in tomorrow’s column.