Cueto can't depose reporter, appellate court rules

Steve Korris Oct. 26, 2009, 5:00am

MOUNT VERNON - Disbarred lawyer Amiel Cueto can't question Belleville News-Democrat reporter George Pawlaczyk under oath about events that led to Cueto's imprisonment, the Fifth District Appellate Court decided.

On Oct. 14, Justices Stephen Spomer and Thomas Appleton directed Randolph County Associate Judge Richard Brown to quash a deposition subpoena that Cueto served on Pawlaczyk.

The decision relieved Pawlaczyk of a contempt order and a $10 fine for declining to appear at the deposition.

Justice Bruce Stewart dissented, writing that Spomer and Appleton stripped Cueto of the full range of discovery options to which he was entitled.

Cueto sought Pawlaczyk's testimony for a suit claiming that the Chicago Tribune, the publisher of the St. Louis Post-Dispatch, the Illinois Civil Justice League (ICJL), and a political action committee known as JUSTPAC invaded his privacy by placing him in false light.

He sued them in 2007, claiming that each of the defendants, on separate occasions from 1997 to 2006, had falsely attributed to him an alleged statement boasting about his control over 15 of 17 St. Clair County judges.

In August 2007, the ICJL and JUSTPAC filed a motion for summary judgment citing transcripts and newspaper articles from court proceedings attributing such a statement to Cueto.

Because Cueto had sued them for a JUSTPAC political campaign brochure stating that Cueto had been quoted as making that boast, they argued that the assertion that he had been quoted in that fashion was true.

Cueto responded to the motion for summary judgment by filing a written objection and by serving a deposition subpoena on Pawlaczyk, a reporter who had covered some of the court proceedings that were the subject of the transcripts and newspaper articles cited by ICJL and JUSTPAC.

Pawlaczyk countered with a motion to quash the subpoena based upon the reporter's privilege statute and the common law special-witness doctrine. Pawlaczyk also argued that his testimony was irrelevant.

Cueto objected to the motion to quash, explaining that the main issue to be covered by Pawlaczyk's testimony was the knowledge of JUSTPAC and ICJL.

In a letter later submitted by Pawlaczyk to the court, Cueto also stated that the deposition would include matters such as Pawlaczyk's alleged role as "witness and accuser and agent provocateur in the proceedings that led to [Cueto] being framed."

At a hearing held in December 2007, Judge Brown denied Pawlaczyk's motion to quash, reasoning that the scope of discovery was broad and that Cueto would not be questioning Pawlaczyk on any of his sources.

Pawlaczyk filed a motion to reconsider.

At a hearing in January 2008 on that motion, Cueto said he believed the allegedly false quotation stemmed from a fax Pawlaczyk received from the federal courthouse in East St. Louis.

He said the deposition would support his contention that he was the first American convicted of a crime although his conduct was lawful.

Brown denied the motion to reconsider, and Pawlaczyk responded that he would stand on his rights and decline to appear.

Brown held him in contempt and fined him.

On appeal, Justice Spomer, in an unpublished order joined by Justice Appleton, declared Pawlaczyk's testimony irrelevant.

Appleton sits on the Fourth District Appellate Court in Springfield, but was assigned to be a member of the three-judge Fifth District panel.

Spomer ruled that, in light of the pending motion for summary judgment, the only issue before Brown is, "as a matter of law, if the publication that 'Lloyd's brother, convicted felon Ameil [sic] Cueto, was once quoted to have said he had 15 of 17 judges from St. Clair County "in this pocket"' is substantially true."

If it is, Spomer wrote, Brown must terminate the litigation.

Spomer concluded that Cueto failed to address how Pawlaczyk will provide relevant information about the truth or falsity of the publication at issue.

Consequently, until the motion for summary judgment "is ruled upon based on the uncontroverted facts before the circuit court, there are no facts left to be discovered that are of any consequence to the determination of this action," Spomer wrote.

Brown should have granted the motion to quash the subpoena, Spomer held, "because no reasonable person could adopt the view that this deposition is relevant to the dispositive issue presently before the circuit court."

Spomer's decision regarding the irrelevance of the requested deposition testimony obviated the need to decide the other grounds for the motion to quash, namely, the reporter's privilege statute or the special-witness doctrine.

In his dissent, Justice Stewart disagreed with the majority's conclusion that the substantial truth defense must be decided without further discovery.

"A rational jury could conclude that the 'gist' and 'sting' of the statement at issue was that the plaintiff claimed to have had 15 of 17 St. Clair County judges in his back pocket and that the 'once quoted to have said' part of the statement is of secondary importance...," Stewart wrote.

In addition, a rational jury might reject the substantial truth defense if the challenged statement was published in a way that the average reader would not understand that it was a summary of a court proceeding, Stewart wrote.

A rational jury also might reject that defense, according to Stewart, if the jury concluded that the defendants adopted the statement as their own, since the defendants did not make a specific attribution to the trial proceeding or otherwise make it apparent that they were paraphrasing official proceedings.

Alluding to Cueto's contention that the defendants knew he did not make the statement about judges in his pocket, Stewart opined that "the majority decision improperly and prematurely preempts the plaintiff's discovery...."

Like the majority, Stewart did not address whether the reporter's privilege statute or the special-witness doctrine required the circuit court to grant the motion to quash.

Nevertheless, Stewart concluded that he would affirm the circuit court's ruling on the basis that Brown did not abuse his broad discretion in determining the scope of discovery.

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