Appendix — Morgan v. Whitt

SC ee

MAY 30 1969

NO. JOSEPH F. SPAMIOL, JR

TTERK

- oe 5 aa

In the

Supreme Court of the United States

October Term, 1988

FRANK MORGAN,

Petitioner,

versus

DENNIS WHITT, individually and in his

official capacity, AND THE TOWN OF LAKE

PARK, FLORIDA,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT-

M. DAVID GELFAND, ESQ.”*

TERRY E. ALLBRITTON, ESQ.

STEVEN A. CHILDRESS, ESQ.

2322 Valmont Street

New Orleans, LA 70118

(504) 895-6252, 865-5732

JAMES K. GREEN, ESQ.

Green, Eisenberg & Cohen

301 Clematis St., Ste 200

West Palm Beach, FL 33401

(305) 659-2009

Attorneys for Petitioner

*counsel of Record

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

TABLE OF CONTENT

PAGE

Denial of Rehearing ........... 1

Opinion of the Court Below .... 3

UURY CROCS 265 5608 6h e cc cnsen a>

Judgment of the District

og ee ee Tree ee 60

WUEY VORRICE oc c0cseu ews cana 63

Plaintiff's Proposed Jury

EMMGCEUCCEGM 46 cnt cence ven 66

aj@=

IN THE UNITED STATES COURT OF APPEALS

‘ FOR THE ELEVENTH CIRCUIT

NO. 87-5556 & 87-6112

FRANK MORGAN,

Plaintiff-Appellee,

versus

DENNIS WHITT, Individually and in his

official capacity and THE TOWN OF LAKE

PARK,

Defendants~Appellants.

Appeal from the United States District

Court for the Southern District of

Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING IN BANC

(Opinion January 11, 1989, 11 Cir.,

1989, F.2d ).

(February 27, 1989)

Before HATCHETT and CLARK, Circuit

Judges, and TUTTLE, Senior Circuit

Judge.

PER CURIAM:

(X) The Petition(s) for Rehearing are

DENIED and no member of this panel nor

other Judge in regular active service on

the Court having requested that the

Court be polled on rehearing in banc

(Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5),

the Suggestion(s) of Rehearing In Banc

are Denied.

( ) The Petition(s) for Rehearing are

DENIED and the Court having been polled

at the request of one of the members of

the Court and a majority of the Circuit

Judges who are in regular active service

not having voted in favor of it (Rule

25, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5),

the Suggestion(s) of Rehearing In Banc

are also DENIED.

( ) A member of the Court in active

service having requested a poll on the

reconsideration of this cause in banc,

and a majority of the judges in active

not having voted in favor of it,

Rehearing In Banc are also DENIED.

ENTERED FOR THE COURT:

/S/ Joseph W. Hatchett

United States Circuit Judge

a

Frank MORGAN, Plaintiff-Appellee,

James TICE, Defendant,

Dennis Whitt, individually and in his

official capacity and The Town of Lake

Park, Defendants-Appellants.

Frank MORGAN, Plaintiff-Appellee,

Dennis WHITT, individually and in his

official capacity and The Town of

Lake Park, Defendants-Appellants.

Nos. 87-5556, 87-6112

United States Court of Appeals,

Eleventh Circuit.

Jan. 11, 1989.

-4-

Before HATCHETT and CLARK, Circuit

Judges, and TUTTLE, Senior Circuit

Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal from a judgment

based on a jury verdict for compensatory

damages against The Town of Lake Park

and Dennis Whitt, the Town manager, and

for punitive damages against Whitt,

together with attorneys' fees against

both defendants.

STATEMENT OF THE CASE

The plaintiff, Frank Morgan, filed

a complaint against Dennis Whitt

("Whitt") and the Town of Lake Park

seeking damages for alleged deprivation

of constitutional rights in violation of

the First, Fifth and Fourteenth

Amendments, under color of state law,

and wherein he also sought damages in a

-5-

pendent state claim for alleged

defamation by defendant Whitt.

Following the trial, the jury concluded

that the plaintiff was entitled to

compensatory damages of $37,500 against

both defendants under 42 U.S.C. 81983

and compensatory damages of $1,000

against Whitt under the pendent

defamation claim. The jury also found

in favor of punitive damages against

Whitt alone for $9,000. The Town and

Whitt duly filed their notice of appeal

from this judgment. This is the appeal

No. 87-5556.

Subsequently, Morgan filed a motion

for the allowance of attorneys' fees and

costs and the trial court granted

plaintiff fees and costs against

defendants in the amount of $44,670.88.

The defendants duly appealed from this

judgment and this appeal is No. 87-6112.

-6-

This Court subsequently consolidated the

two appeals for consideration by this

Court.

A. APPEAL IN NO. 87-5556

(1) Statement of Facts

The jury had sufficient evidence

before it to have believed that the

following occurred:

Whitt was Town manager of Lake Park

from February 17, 1982 to sometime late

in 1986. He first met Morgan in March,

1982, while Morgan was campaigning for a

mayoral candidate who was subsequently

elected. During Whitt's incumbency as

Town manager, he performed certain Town

matters in a way that was strenuously

Opposed by Morgan. As a result, Morgan

criticized Whitt repeatedly, both

verbally and as a writer of a weekly

column in a local weekly newspaper,

ee |

wo Fas

Weekday. He accused Whitt of violating

the city code and likened some of the

actions taken by Whitt as being

reminiscent of the time when Hitler came

to power with the Nazi government in

Germany.

During the years in question,

Morgan was active in publicly supporting

several candidates for Town offices. He

was a former resident of Pennsylvania

who moved to Florida in 1978. In

Pennsylvania he had held political

office for a number of years as a

township supervisor and mayor of

Schwenksville. At the time here

relevant, it was clear from undisputed

evidence that he had become a public

figure within the meaning established by

the Supreme Court, in New York Times Co.

v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,

ll L.Ed.2d 686 (1964), and Gertz Ve

-8-

Robert Welch, Inc., 418 U.S. 323, 94

S.Ct. 2997, 41 L.Ed.2d 789 (1974).

As stated by the appellee:

In Lake Park, the Town Manager

is empowered "[t]o see that the

laws and ordinances are enforced."

ae of Lake Park Charter art. VI,

3 (a) . - - Indeed, the Charter

makes him the "administrative head

of the municipal government under

the laws of the Town." Town_of

Lake Park Charter art. VI, &l.

More specifically, the Town Manager

has the power to appoint and

remove, subject to confirmation by

the Town Commission, "all

subordinate officers" of the Town,

except the Town Attorney and Town

Auditor. _Town of Lake Park Charter

Src. Vi; 3(e).

On January co 1985, Whitt,

accompanied by a Sgt. Tice, of the

Town's police department, started for

Auburn, New York to investigate the

truth of a claim made by an employee of

the Town police department that she had

graduated from high school. Their

investigation discovered that this

statement in the employee's application

~9=-

was false. At about the time the trip

was to be executed, Whitt discovered

that they would have to change planes in

Philadelphia in order to fly to Syracuse

on the way to Auburn. Thereupon, he and

Tice took a stopover in Philadelphia, on

their own time.

Whitt charged the couple of days of

stopover against his annual leave and

Tice took his stopover time as comp

time. They rented an automobile in

Philadelphia and drove to Schwenksville

where they then sought to get

information which Whitt hoped to use to

counter the actions of Morgan which were

intended to vilify Whitt. The airplane

fare to Syracuse was increased by some

$400 by reason of the stopover in

Philadelphia. While Whitt charged the

roundtrip fares to the Town, he

testified that he did not know of the

SS ee ae eae ee

nt

fact that the stopover added to that

cost. Whitt and Tice paid their own

expenses while on the sidetrip to

Schwenksville, including an overnight

stay in Philadelphia.

Upon arriving in Schwenksville,

Whitt and Tice went to the office of a

local newspaper, The Independent, and

spoke to the person in charge, Lynn

Nyce. She stated then that there was no

one there who was authorized to let them

see the back numbers of the newspaper.

During their discussion, Whitt made a

statement to the effect that Morgan had

become involved previously in the

Schwenksville area in some sort of land

development scheme and that the

properties he owned had mysteriously

-ll-

burned. +

Whitt presented his business card

as city manager of the Town of Lake Park

and Tice showed his police I.D. both to

the newspaper people and later to the

officials of Schwenksville on whom they

1. The testimony of Ms. Nyce at this

point was as follows:

A. He went on to say -- he

called Mr. Morgan a crook. He

said that he planned to remove

him from public service, and he

was going to do that by getting

enough information on him to

put him in jail.

Q. Did he use the words, put

him in jail, or say something

more specific, if you can

remember?

A. He said, we're going to get

enough information on him to

put his ass in jail.

Q. Did he say anything else to

you?

A. A number of things. That

they had been visiting public

places in the area. One that

was mentioned was the Limerick

Diner, which is about ten

minutes away.

He said that they had been

_questioning people, and that

people that knew of Mr. Morgan,

didn't have anything nice to

say about him.

-12-

called next. At the town hall, they had

access to town minutes and had

conversations with the mayor, the chief

of police, other town officials anda

newspaper man. The latter testified on

deposition that after the meeting at the

city hall, he had the impression that

Morgan was in deep trouble. He stated,

however, that this was of no surprise to

him because of his "knowledge of Mr.

Morgan." He stated: "As I say, I Knew

Mr. Morgan. For someone to come and say

Mr. Morgan was in trouble in another

state or town, would be no surprise to

After the sidetrip to

Schwenksville, Whitt and Tice continued

to Syracuse and then Auburn, New York,

where they investigated the educational

status of a Town employee because some

doubt had arisen whether she had

i

truthfully stated that before her

employment, she had graduated from high

school in Albany. This was dealt with

by both Whitt and Tice as a criminal

investigation for the Town of Lake Park.

Morgan testified that after he had

learned about the trip to Schwenksville,

he had become fearful for his safety,

saying that he was afraid his home might

be bombed or that he might actually be

killed, that it left him uneasy and

unable to sleep normally. He

thereafter, however, continued to write

his weekly column and he later supported

other persons, including his daughter,

for election to the Town council.

(2) Issues on Appeal

: Did the trial court err in not

granting the motion of the Town of

Lake Park for a judgment n.o.v.

te

-14=-+

because, either

(a) Whitt was not the final

policymaker of the Town as to

actions which were the subject

of this action, or

(b) Because Whitt's actions were

not shown to have been taken

under the color of state law?

Did the trial court err in not

granting the defendant' Whitt's

motion for judgment n.o.v. at the

conclusion of the case because

either

(a) There was a failure by the

plaintiff to show that the

alleged damage was caused by

action taken under color of

state law, or

(b) Because there was a failure to

establish by clear and

convincing evidence that Whitt

-15<-

had acted with actual malice?

(3) Discussion

(a) Liability Under Section 1983

(1) Liability of the Town of Lake Park

Under Section 1983

The jury found both Whitt and the

Town liable to Morgan on the counts of

the complaint that were based on 42

U.S.C. #1983. That Section provides as

follows:

Civil action for deprivation of

rights

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage, of

any State or Territory or the

District of Columbia, subjects, or

causes to be subjected, any citizen

of the United States or other

person within the jurisdiction

thereof to the deprivation of any

rights, privileges, or immunities

secured by the Constitution and

laws, shall be liable to the party

injured in an action at law, suit

in equity, or other proper

proceeding for redress.

42 U.S.c. # 1983.

The Supreme Court, in Monell v.

-16-

Department of Social Services, 436 U.S.

658, 98 S§.Ct. 2018, 56 L.EG.2dad 611

(1978), held for the first time that a

municipality could be held liable as a

person under certain circumstances under

Section 1983. The Court there said:

We conclude, therefore, that a

local government. May not be sued

under Section 1983 for an injury

inflicted solely by its employees

or agents [on the theory of

respondeat superior]. Instead it

is when execution of a government's

policy or custom, whether made by

its lawmakers or by those whose

edicts or acts may fairly be said

to represent official policy,

inflicts the injury that the

government as an entity is

responsible under Section 1983.

436 U.S. at 694, 98 S.Ct. at 2037-2038.

The first question raised by this

appeal, therefore, is whether Whitt's

actions amounted to an "execution of a

government's policy or custom," as made

by one "whose edicts or acts may fairly

be said to represent official policy."

Our consideration of this question

at Ta

is aided by the Supreme Court's later

decision in Pembaur a City of

Cincinnati, 475 U.S. 469, 106 S.Ct.

1292, 89 L.Ed.2d 452 (1986). Referring

to the Monell case, the Court in Pembaur

said:

The conclusion that tortious

conduct, to be the oe for

municipal liability under 1983,

must be pursuant to a

municipality's “official policy" is

contained in this discussion. The

“official policy" requirement was

intended to distinguish acts of the

municipality from acts of employees

of the municipality, and thereby

make clear that municipal liability

is limited to action for which the

municipality is actually

responsible. Monell reasoned that

recovery from a municipality is

limited to acts that are, properly

speaking, acts "of the

municipality" -- that is, acts

which the municipality has

officially sanctioned or ordered.

106 S.Ct. at 1298 (footnote omitted.)

While appellee strongly argues that

Whitt was the final authority of the

Town of Lake park in determining

official policy of the Town, he

-18-

completely fails to establish what

"policy" the Town could have with

respect to the investigation of a

private individual not in any way

connected with the Town. Not only did

the plaintiff fail to prove any such

policy, but it is beyond this Court's

imagination to discern any such policy

of any municipality.

The trial court therefore erred in

charging the jury over defendant's

objection that:

The court instructs you as a matter

of Florida law, that the defendant

Whitt possessed final authority to

establish municipal policy with

respect to his actions which are

the subject of this lawsuit, and

that the town of Lake Park is

liable for his action, if you find

the actions to have been wrongful.

(Emphasis added.)

AS we have stated above, this

charge was incorrect not only because

there was substantial dispute as to

er t—‘i=S

-19-

whether Whitt was purportedly acting in

an official capacity but more especially

because no municipal policy was

established with respect to the sort of

action that Whitt was admittedly engaged

in.

We conclude, therefore, that the

trial court in erred in not granting

judgment n.o.v. for the Town because of

the failure of the plaintiff to

establish the municipality's liability

under the standards of Pembaur and

Monell.

(2) Liability of Whitt Under

Section 1983

As conceded by the appellant, a

public official may act under color of

state law -- as required to satisfy the

predicate for liability under 42 U.S.C.

S 1983 -- even if he is not acting

pursuant to a state law if, in

-20-

performing a wrongful act which deprives

another of his constitutional rights,

the official is able to do so by virtue

of the position he holds. Brown v.

Miller, 631 F.2d 408 (5th Cir. 1980).

However, as indicated by Monroe v. Pape,

365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d

492 (1961), the principle involved in

such a situation which is characterized

as the "misuse of public power"

situation is that the official who acts

without legal authority is able to do so

only because he is "clothed with the

authority of state law." 365 U.S. at

184, 81 S.Ct. at 482, citing United

States v. Classic, 313 U.S. 299, 326, 61

S.Ct. 1031, 1043, 85 L.Ed. 1368.

2. In Bonner v. City of Prichard, 661

F.2d 12906 (llth Cir. 1981) (en banc),

this Court adopted as precedent all of

the decisions of the former Fifth

Circuit decided prior to October 1,

1981.

uO2u

There is nothing here in the record

to indicate that Whitt was clothed with

the power by the Town of Lake Park to

make the alleged defamatory statements

about Morgan. His authority, as Town

manager, if any, had no effect on what

he had to say while visiting

Schwenksville or upon his return to Lake

Park, and that is what he is here being

sued for. See Delcambre v. Delcambre,

635 F.2d 407, 408 (5th Cir. 1981) (per

curiam) (sheriff not acting under -»lor

of law when he assaulted sister-in-law).

We also conclude, therefore, that

defendants were entitled to a judgment

n.o.v. on the § 1983 counts because of a

failure to establish that any conduct of

Whitt that was deleterious to the

plaintiff was done under color of state

law.

-22-

(3) Whitt's Liability on Pendent

State Claim

Whitt's principal contention in

appealing from the verdict and judgment

on the pendent state defamation claim is

that the proof below was totally without

a showing of actual malice by him in his

statements. As pointed out before, it

is clear that Morgan was a public figure

Since he "thrust himself into the vortex

of [a] public issue." Gertz v. Robert

Weiecn., ine., 4168 U.S. 323, 353, 94 &.Ct.

2997, 3013, 41 L.Ed.2da 789 (1974). The

First Amendment, therefore, requires

that Morgan prove by clear and

convincing evidence that the statements

were false and made with actual malice.

Las at 332, $4 &.CU. at SGO8. In New

York Times v. Sullivan, supra, the Court

defined "actual malice" as a statement

made "with knowledge it was false or

with reckless disregard of whether it

-23-

was false or not." 376 U.S. at 280, 84

&.ct. at 726.

Whatever statements were made by

Whitt during his visit to Schwenksville,

Pennsylvania or were published by him

upon his return to the Town of Lake

Park, so far as anything in the record

discloses, represented his honest

belief. The plaintiff made no effort to

show that the comments made by Whitt

were false. In a general way it may be

argued that he had a purpose and intent

to find whatever unsavory things he

could about Morgan. This does not, it

seems to us, constitute the actual

malice in the making of false defamatory

statements that was defined by the Court

in Sullivan.

We conclude, therefore, that the

trial court erred in not granting

Whitt's motion for judgment n.o.v. on

-24-

the pendent state defamation clain.

The judgments are therefore

REVERSED.

B. APPEAL IN NO. 87-611

This is an appeal by the appellants

from the grant of attorney's fees

against both appellants by the trial

court. The appeal is taken to protect

the interests of appellants if this

Court reverses the trial court's

judgments in their favor.

Since we have reversed the

judgments against Whitt and the Town,

Morgan cannot claim to be the

"prevailing party" under 42 U.S.C.

21988.

The judgment for attorney's fees

and costs is REVERSED.

-25-

THE COURT: Members of the jury, I

shall now instruct you on the law that

you must follow in reaching your

verdicts.

it is your duty as jurors to

consider and weigh the evidence, to

decide the disputed issues of fact, and

to apply the law to the facts as you

find them from the evidence.

You, as jurors, are the judges of

the facts. But in determining what

actually happened in this case--that is,

in reaching your decision as_ to the

facts--it is your sworn duty to follow

the law as the Court is’ now in the

process of defining for you.

Unless otherwise stated, you should

consider each instruction to apply

separately and individually to each

Defendant on trial.

Further, you must follow all of the

-~26-

Court's instructions as awhole. You

have no right to disregard or give

special attention to any one particular

instruction, or to question the wisdom

or correctness of any rule of law the

Court may state to you.

That is, you must not substitute or

follow your own notion or opinion as to

what the law is or ought to be. It is

your duty to apply the law as given to

you, regardless of the consequences.

That is the promise you made and

the oath you took before being accepted

by these parties as jurors in this case,

and they have the right to expect

nothing less.

By the same token, it is also your

duty to base your verdict solely upon

the testimony and evidence in the case,

without prejudice or sympathy.

In your deliberations, you are to

-27-

consider four distinct claims:

First, the claim of Frank Morgan

against Dennis Whitt for slander.

Second, the claim of Frank Morgan

against Dennis Whitt for invasion of

privacy.

Third, the claim of Frank Morgan

against Dennis Whitt for deprivation of

constitutional rights brought under 42

United States Code, Section 1983.

Fourth, the claim of Frank Morgan

against the Town of Lake Park for

deprivation of constitutional rights

brought under 42 United States Code,

Section 1983.

Although these claims have _ been

tried together, each is separate from

the others, and each party is entitled

to have you separately consider each

claim as it affects that party.

Therefore, in your deliberations,

-28-

_

you should consider the evidence as it

relates to each claim separately, as

though each claim was tried before you

separately.

Although there are two Defendants

in this action, it does not follow from

that fact alone that if one is liable,

both are liable.

Each defendant is entitled toa

fair consideration of his own defenses,

and is not to be prejudiced by the fact,

if it should become a fact, that you

find against the other. Unless

otherwise stated, all instructions given

you, govern the case as to each

defendant.

Members of the jury, in determining

the believability of any witness and the

weight to be given to his or her

testimony, you may properly consider the

demeanor of the witness while

-29-

testifying; the frankness or lack of

frankness of the witness; the

intelligence of the witness; the

interest of the witness, if any, in the

outcome of the case; the means and

opportunity the witness had to know the

facts about which he testified; the

ability of the witness to remember the

matters about which the witness

testified; and the reasonableness of the

testimony of the witness; considered in

light of all the evidence in the case,

and in the light of your own experience

and common sense.

The party with the burden of proof

on any given issue, has the burden of

proving every disputed element of his

claim to you by a preponderance of the

evidence.

If you conclude that the party

bearing the burden of proof has failed

-30-

to establish his claim by a

preponderance of the evidence, you must

decide against him on the issue you are

considering.

What does a preponderance of the

evidence mean? To establish a fact by a

preponderance of the evidence, means to

prove that the fact is more likely true

than not true.

A preponderance of the evidence

means the greater weight of the

evidence. It refers to the quality and

persuasiveness of the evidence, not to

the number of witnesses or documents.

In determining whether a claim has

been proved by a preponderance of the

evidence, you may consider the relevant

testimony of all witnesses, regardless

of who may have called them, and all the

relevant exhibits received in evidence,

regardless of who may have produced

-3l1-

them.

: € you find that the credible

evidence on a given issue is evenly

divided between the parties--that it is

equally probably that one side is right,

as it is that the other side is

right--then you must decide that issue

against the party having this burden of

proof.

That is, because the party bearing

this burden must prove more than simple

equality, he must prove the element at

issue by a preponderance of the

evidence.

On the other hand, the party with

this burden of proof need prove no more

than a preponderance. So long as you

find that the scales tip, however

slightly, in favor of the party with

this burden of proof--that what the

party claims is more likely true than

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If the preponderance of the

evidence supports this defense of Mr.

Whitt, your verdict should be for Mr.

Whitt. If, however, the preponderance

of the evidence does not support this

defense, and the preponderance of the

evidence does support the claim of Frank

Morgan, then your verdict should be for

Frank Morgan and against Mr. Whitt.

And I will define privilege for you

in just a moment. A statement or

suggestion that a person has committed a

crime or criminal acts, or that a person

is dishonest, constitutes defamation,

per se.

If you find from a preponderance of

the evidence that Defendant Whitt stated

or suggested that the Plaintiff Morgan

committed crimes or criminal acts, you

need not make a specific finding that

the Plaintiff was damaged, but may

atin

presume that the Plaintiff was damaged,

and award him such sum as you believe

fully and fairly compensates him for

such damage.

The second Claim of Plaintiff

against the Defendant, Mr. Whitt,

individually, is for invasion of

privacy.

One who gives publicity to a matter

concerning another that places the other

before the public ina false light, is

Subject to liability to the other for

invasion of his privacy, if:

(1) The false light in which the

other was placed would be highly

offensive to a reasonable person; and

(2) The actor had knowledge of, or

acted in reckless disregard as to the

falsity of the publicized matter and the

false light in which the other would be

placed.

Te

If the preponderance of the

evidence supports the invasion of

privacy claim for Plaintiff, then your

verdict should be for Plaintiff Morgan.

If, however, the preponderance of

the evidence does not support the claim

of Plaintiff Morgan, then your verdict

should be for Defendant Whitt.

The Court has found, and now

instructs you as a matter of law, that

Mr. Morgan, the Plaintiff herein, was a

public figure.

A qualified privilege extends to a

person who makes statements about a

public figure or public official. The

privilege protects the maker of such

statements, as long as the statements

are comment and opinion or are false

statements made without malice.

This privilege applies to the case

of defamation in this cause.

a3%=

The third claim of the Plaintiff is

for a violation of Title 42 United

States Code, Section 1983. In that

count, Plaintiff alleges that both

Defendants, acting under color of state

law, deprived him of rights and

privileges guaranteed to him by the

United States Constitution, and by an

Act of Congress which provides for equal

rights of all persons within the

jurisdiction of the United States.

The Plaintiff alleges that he

suffered or sustained personal injuries

as a result of the Defendants' actions,

and seeks an award of damages for these

injuries.

In particular, the Plaintiff

alleges that the Town of Lake Park and

Mr. Whitt launched an investigation of

Plaintiff in retaliation for Plaintiff's

criticism of Mr. Whitt and the Town

-38-

government.

During that investigation, the

Plaintiff alleges that Mr. Whitt made

certain false and defamatory statements.

Plaintiff also alleges that Defendant

Whitt committed torts of defamation and

invasion of privacy.

The Plaintiff alleges that the

Defendant took these actions under color

of the laws of the State of Florida and

the customs and policies of the Town of

Lake Park, and therefore deprived the

Plaintiff of the rights and privileges

secured and protected to him by the

constitution and laws of the United

States; namely, the constitutional right

not to be investigated or otherwise

harassed for criticizing public

officials, and the right not to be

stigmatized based solely on his

criticism of public officials.

-39-

You are instructed, as a matter of

law, that under the constitution of the

United States, every person has the

right not to be deprived of liberty

without due process of law.

Every person also has’ the right

under the constitution to be free from

unreasonable searches or investigations.

You are further instructed, that

Section 1983 of Title 42 of the United

States Code, provides that any citizen

may seek redress in this Court by way of

damages against any person or persons,

who, under color of any State law or

custom, subjects such citizen to the

deprivation of any rights, privileges,

or immunities secured or protected by

the constitution or laws of the United

States.

Acting under color of state law

means, under pretense of law, and simply

=a

means acting in one's capacity as, in

this case, police officers or City

officials.

The color of law requirement can be

satisfied when A person who is

affiliated with a state or municipal

government has used his position to

deprive another of his constitutional

rights.

Thus, the color of law requirement

can be satisfied where a dispute is

motivated by purely personal reasons,

provided the alleged misuse of power is

made possible because the alleged

wrongdoer is clothed with the authority

of state law.

As I have said, the Fourteenth

Amendment of the federal constitution

provides that no state shall deprive a

person of his liberty without due

process of law.

ohie~

The liberty of the individual,

which the federal constitution thus

secures and protects, is not an absolute

and unqualified freedom privilege [sic]

to do as one pleases at all times and

under any circumstances; but is always

subject to reasonable restraints,

including of course, such restraints as

are imposed by law.

The Plaintiff in this case, in

common with the Defendants and all other

persons living under the protection of

our constitution, had the legal right at

all times not to be deprived, without

due process of law, of any liberty

secured or protected to them by the

constitution or laws of the United

States.

The Plaintiff had a liberty

interest in not being stigmatized based

solely or substantially on his criticism

-42-

of public officials.

To be deprived of liberty without

due process of law, means to be deprived

of liberty without authority of the law.

In order to prove his claim under the

civil rights claim contained in this

action, the burden is upon the Plaintiff

to prove and establish, by a

preponderance of the evidence, the

following facts:

First, that Plaintiff has been

stigmatized tas” or as a result of, the

investigation process, by false and

disparaging allegations of criminal

activity.

Second, that Defendant Whitt acted

under color of state law, or municipal

ordinance, in going to Schwenksville and

Collegeville, Pennsylvania to make

inquiries and obtain information

relating to Frank Morgan.

-43-

Third, that these acts and conduct

deprived Frank Morgan of his federal

constitutional right of free speech, and

of his federal constitutional right not

to be deprived of his liberty without

due process of law.

Fourth and finally, that these acts

and conduct proximately caused Frank

Morgan to sustain injury to his feelings

and to his ability to exercise his right

of free speech.

In respect to the 1983 claim as

against the Town of Lake Park, the

Plaintiff, in order to prevail as

against that Defendant, must prove each

of the following elements by a

preponderance of the evidence:

First, that the Defendant Whitt

acted under color of state law, or

muncipal ordinance, in going to

Schwenksville and Collegeville,

ohin

Pennsylvania to make inquiries and

obtain information relating to Frank

Morgan.

Second, that in undertaking these

inquiries and obtaining this

information, Dennis Whitt's conduct

represented official policy of the Town

of Lake Park.

Third, that these acts and conduct

deprived Frank Morgan of his federal

constitutional right of free speech, and

of his federal constitutional right not

to be deprived of his liberty without

due process of law.

And finally, that these acts and

conduct proximately caused Frank Morgan

to sustain injury to his feelings, and

to his ability to exercise his right of

free speech.

An injury or damage is proximately

caused by an act, or a failure to act,

-45<

whenever it appears from the evidence in

the case, that the act or omission

played a substantial part in bringing

about or actually causing the injury or

damage; and that the injury or damage

was either a direct result or a

reasonable probable consequence of the

act or omission.

This does not mean that the law

recognizes only one proximate cause of

an injury or damage, consisting of only

one person.

On the contrary, many factors or

things, or the conduct of two or more

persons, may operate at the same time,

either independently or together, to

cause injury or damage; and in such a

case, each may be a proximate cause.

The Plaintiff is entitled to

receive damages if the Defendant or

Defendants took actions which resulted

=46<

in a violation of the Plaintiff's

rights.

It is not necessary to find that

any of the Defendants intended to

deprive the Plaintiff of his civil

rights, in order to find in favor of the

Plaintiff on his civil rights claims.

The Town of Lake Park is a person

within the meaning of Section 1983, and

may be held liable for violations of

civil rights which are the result of

Town policy, custom, or practice.

The Town is liable for the acts of

(sic: or] orders of Town officials who

possess final authority with respect to

such actions or orders.

When an official has final

authority in a matter involving the

selection of objectives or of means of

achieving objectives, his choices

represent governmental policy.

-47-

The Court instructs you, as a

matter of law, that the Defendant Whitt

possessed final authority to establish

municipal policy with respect to his

actions, which are the subject of this

lawsuit, and that the Town of Lake Park

is liable for his actions, if you find

those actions to have been unlawful.

Also, the question of whether or

not Mr. Whitt properly or improperly

expended public funds is not an issue in

this case, and should not be considered

by the jury in any way in arriving at a

fair and impartial verdict in this case.

That is another question for another

day.

The fact that a particular

official--even a policy-making

official--has discretion in the

exercises of particular functions, does

not, without more, give rise to

-48-

municipal liability, based on an

exercise of that discretion.

The official must also be

responsible for establishing final

government policy respecting such

activity, before the muncipality can be

liable.

That is, municipal liability under

1983 attaches where--and only where--a

deliberate choice to follow a course of

action is made from among various

alternatives by the official or

officials responsible for establishing

final policy with respect to the subject

matter in question.

If you find for the Defendants on

each of the claims--that is, on the

defamation clain, the invasion of

privacy claim and find on behalf of both

Defendants as to the 1983 claim--you

will not consider the matter of damages.

———_

-49-

If you find for the Plaintiff,

however, you must then determine what

amount of damages, if any, to award the

laintiff for compensation for his

injury.

In arriving at an award of damages

in this case, you should consider the

following types of damages:

One, you may award the Plaintiff

such actual compensatory damages as you

find from a preponderance of the

evidence, are proximately caused by any

acts of the Defendants which were

contrary to law.

Two, you ray also award the

Plaintiff nominal dollars for the

deprivation of his constitutional

rights.

Third, if you find for the

Plaintiff and against Defendant Whitt,

you must decide whether it appears from

-50-

a preponderance of the evidence in the

case that the acts and conduct of

Defendant Whitt, toward the Plaintiff at

the time and place in question, were

willful and with gross disregard for

Plaintiff's rights; and if so, what

amount, if any, punitive exemplary

damages should be added to the award of

actual compensatory or nominal damages

against Defendant Whitt.

As to Defendant Whitt, you may

award punitive or exemplary damages in

addition to actual or compensatory, or

nominal damages without punitive

damages, all in accordance with the

facts as you find them and from these

instructions.

The fact that Plaintiff's rights

have been found to be violated, in

itself, entitles him to damages.

Therefore, if you find for the Plaintiff

-5)]-

on the issue of liability, you must then

fix--

Sorry, I think I got that in here

twice. Do I?

MR. GREEN: No.

THE COURT: No? Okay. Therefore,

if you decide for the Plaintiff on the

issue of liability, you must then fix

the amount of money damages which will

reasonably and fairly compensate him for

the wrongful conduct of the Defendants,

which was a substantial factor in

bringing about.

In seeking such award, you should

consider and may award damages for the

following injury and harm:

One, the violation of his

constitutional rights to be free from

unreasonable investigations.

Secondly, the emotional and mental

harm to the Plaintiff during and after

59 =

the investigation, including fear,

humiliation, mental anguish, and any

emotional harm, fear or mental anguish

that Plaintiff will, with reasonable

certainty, suffer in the future.

And finally, the extent and

duration of the injury, as I have said,

including their reasonable certainty to

continue in the future.

You may also decide whether the

Plaintiff is entitled to an award of

punitive damages against Defendant

Whitt. In a case like this, you may

consider whether acts or omissions of

Mr. Whitt, if you find them to be

proved, were so serious that Defendant

whitt should pay a penalty, so that in

the future, others will be deterred from

engaging in the same conduct.

Whether you decide to award any

punitive damages, should be based on

—-53=-

whether you decide that Defendant Whitt

engaged in conduct evidencing ill will,

hostility, or evil intention to defame

and injure.

In making an award of punitive

damages, if any, against Mr. Whitt, you

may consider Mr. Whitt's net worth in

arriving at a fair and impartial award.

I should caution you, members of

the jury, that you may not make an award

of punitive damages unless you first

find that the Plaintiff is entitled to

compensatory damages.

Upon retiring to the jury room, you

should first select one of your number

to act as your foreman or forewoman who

will preside over your deliberations and

will be your spokesman here in court.

A form of verdict has been prepared

for your convenience, and I shall now

read it to you:

-54=-

Verdict, we, the jury, return these

verdicts--and this is a verdict we call

by special interrogatories--and there

are a number of questions here, and I'll

read those to you.

One, as to the claim of the

Plaintiff, Frank Morgan, that his civil

rights were violated by the Defendant

Whitt, we find--either for the Plaintiff

or for the Defendant.

Your foreman or forewoman should

insert your finding by putting a check

mark in the appropriate box.

The second question is, as to the

claim of the Plaintiff, Frank Morgan,

that his civil rights were violated by

the Defendant, Town of Lake Park, we

find--again, either for the Plaintiff or

for the Defendant.

Again, your foreman or forewoman

should put an X in the appropriate blank

-55-

as provided.

Three, as to the claim of the

Plaintiff, Frank Morgan, of defamation

by the Defendant, Dennis Whitt, we

find--either for the Plaintiff or for

the Defendant.

There again, a blank space is

provided for you to insert your finding.

Four, as to the claim of the

Plaintiff, Frank Morgan, of invasion of

privacy by the Defendant, Dennis Whitt,

we find--either for the Plaintiff or for

the Defendant.

Again, there is a blank space

provided for you to indicate your

finding.

be you answer the first four

questions im the negative, as I said,

then you do not consider the issue of

damages. That is, if you find for the

Defendant, in which case you answer the

-56-

first four questions in the negative,

you should then have your foreman or

forewoman fill in the date, sign it, and

return it to the court as your verdict.

If you find for the Plaintiff on

any of the first four questions, you

should then proceed to consider number

five:

Compensatory damages for defamation

and/or invasion of privacy are hereby

assessed in favor of the Plaintiff,

Frank Morgan, and against the Defendant,

Dennis Whitt, in the amount of--and you

will see a blank space is provided with

a dollar sign to the left, and you

should insert in that blank space the

sum that you deem appropriate under the

facts and law of the case; making

certain to insert dollars and cents.

Question number six, compensatory

damages for violation of 42 United

-57-

States Code 1983 are hereby assessed in

favor of the Plaintiff, Frank Morgan,

and against the Defendants, Dennis Whitt

and the Town of Lake Park, in the amount

of--blank dollar.

And, again, you should insert what

amount, if any, you deem appropriate

under the facts and law of the case.

Finally, punitive damages are

hereby. asessed in favor of the

Plaintiff, Frank Morgan, and against the

Defendant, Dennis W itt, in the amount

of--blank dollars.

And there you should insert

whatever finding you may make as to the

issue of punitive damages. Punitive

damages are an award within your

discretion, you may or may not award

them. However, as I said earlier, you

can not make an award of punitive

damages unless you have made an award of

lll

-$8-

compensatory damages.

You will take the verdict form to

the jury room, and when you have reached

unanimous agreement as to your verdicts,

you will have your foreman or forewoman

fill it in, date and sign it, and then

return it to the courtroom.

If during your deliberations, you

should desire to communicate with the

Court, please reduce your message or

question to writing, have it signed by

your foreman or forewoman, and pass at

to the U.S. Marshal, who will then bring

it to the Court's attention.

We will then respond to whatever

question you may have, as promptly as

possible; either in writing, or by

having you returned to the courtroom so

you may be addressed orally.

You are cautioned, however, that

with regard to any question or message

=-59<

you may send, that you should never

state your numerical division at the

time. In other word, don't say, two of

us want to know, or one of us wants to

know, or five of us think.

(Alternate juror excused with the

thanks of the Court)

THE COURT: Certain of the exhibits

that have been received in evidence will

be assembled and delivered to you by the

Clerk in just a few minutes, to assist

you in the course of your deliberations.

I remind you, again, ladies and

gentlemen, your verdicts in this case

must be unanimous; that is, they must be

concurred in and agreed in by each of

you before it is returned to the Court

as your verdict.

With those instructions, you may

now retire in the consideration of your

verdict.

ht

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defendant, LLOYD DENVER WHIT

4

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O

Known as DENNIS WHITT, the sum of Ten

Thousand Dollars ($10,000.00), with

interest thereon at the rate of 6.3% as

action, and further recover of the

iefendants, LLOYD DENVER WHITT, also

Known as DENNIS WHITT, and THE TOWN F

LAKE PARK, a Florida municipal

>orporation, the sum of Thirty-Seven

ee hy, tole sien - ; - - >)

$37,500.00), with nterest thereon at

~ c ? ct ~ 2 | ’

the rate of 6.3% as provided by law, and

~ + ~

Sts of action

+

-62-

DATED at Fort Lauderdale, Florida,

S/ Jose A. Gonzalez

United States District Judge

es K. Green Esquire

en, Eisenberg and Cohen, Lawyers

Clematis Street, Suite 200

t Palm Beach, FL 33401

N

~ \

ne 0

nthony J. Natale, Es

450 Australian Avenue,

West Palm Beach, FL 334

Michael B. Davis, Esquire

Davis, Critton, Hoy & Diamond

Suite 1010 - Forum IIl

1655 Palm Beach Lakes Blvd.

West Palm Beach, FL 33401

Michael J. Kennedy, Esquire

Peterson & Fogarty, P.A.

Post Office Drawer 15700

West Palm Beach, FI 3341¢

-63—

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 85-8241 Civ-Gonzalez

CDARTU BMADCAR

BRANNAN SBTIVNGAN,

—

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rialntl

.TaT "os & ie aha nla a mm a

a Whiidid, ae | ="

ry - wN we

VeEeTenaants

TIOPnTAm

r \

i iJ i WS 4

7 "

oe » >> 2*4F ft = tah i ie ak oe 3A =~

we, Cne “ai Ys return Lcnese

¥ S| “—

am» we &

IS WHITT, we find:

X for the plaintiff

for the defendant

2 As to the claim of the

plaintiff, FRANK MORGAN, that his civil

-64-

rights were violated by the defendant,

TOWN OF LAKE PARK, we find:

X for the plaintiff

for the defendant

3. As to the claim of the

plaintiff, FRANK MORGAN, of defamation

by the defendant, DENNIS WHITT, we find:

X for the plaintiff

for the defendant

4. As to the claim of the

plaintiff, FRANK MORGAN, of invasion of

privacy by the defendant, DENNIS WHITT,

we find:

xX for the plaintiff

for the defendant

5. Compensatory damages for

defamation and/or invasion of privacy

are hereby assessed in favor of the

plaintiff, FRANK MORGAN, and against the

defendant, DENNIS WHITT, in the amount

of $1,000.00.

aiSa

6. Compensatory damages for

violation of 42 U.S.C. 1983 are hereby

assessed in favor of the plaintiff,

FRANK MORGAN, and against the

defendants, DENNIS WHITT and TOWN OF

LAKE PARK, in the amount of $37,500.00.

7. Punitive damages are

hereby assessed in favor of the

plaintiff, FRANK MORGAN, and against the

defendant, DENNIS WHITT, in the amount

of $9,000.00.

SO SAY WE ALL.

DATED this 15 day of April,

/S/ Joyce M. Taylor

Foreperson

-66-

PLAINTIFF'S PROPOSED JURY INSTRUCTION

NO. 12

Municipal Liability

The Town of Lake Park is a person

within the meaning of Section 1983 and

may be held liable for violations of

civil rights which are the result of

Town policy, custom, or practice. The

Town is liable for the acts of orders of

Town officials who possess final

authority with respect to such action(s)

or orders. When an official has final

authority in a matter of involving the

selection of objectives or of means of

achieving objectives, his choices

represent governmental policy. The

Court instructs you as 4a matter of

Florida law, that the Defendant Whitt

possessed final authority to establish

municipal policy with respect to his

-67-

actions which are the subject of this

lawsuit, and that the Town of Lake Park

is liable for his actions, if you find

the actions to have been wrongful.