# Appendix — Morgan v. Whitt

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1423%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 813

## Text

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

, . ters owe hor hk = + ; ement will have
yee rey ‘ale o>" : nrer HAaera ‘ ’
ey [eer — «
ms > ' “> - ” ‘ at ’ > ny >
pey ; 1 rea nai f Ot wi ‘ tne
props tanaara L py? I ‘ } rimina
+ . hat rer romen?+ ; . ‘ IDI
: s } , " > .
oe f , , i? etermii! t r ‘
ie famat " - ‘ > 4 . 4
Cc iy > > r s’-ba ->. . * ‘ ~ >
There ij ‘ iefamat I 11m ida t tne
eter iant I aw! I K€ ite
net ‘ofan at ¥ ia . ’
ter ’ ; ° ‘ Defendant onr ‘ -~ + +
” F ’ “ " > >
. :
“

- + - as - ~ ~- -oc ‘ > y » .
. . . ¢). : ‘ A> -
’ ap he -- - ~ ——_—-— -.
. ‘ - ‘ > ,y
. . . . ._- ~ «+ > . - stave
-- 1 ‘ - ‘ > > ~
: ene ‘ ‘ : ‘ e
> ~~ & a : .* . >
' . > + » _ + , ~~ 7 -
vY . . \< . Cc AL
: . ~ + = . " < ’ a on > , : - >
T ¢ ‘ oY ‘ : ‘ ‘
‘ . : ' ‘ ‘
: _ > a a - . -
"2. P ‘ . . . > . a ’ v : ‘ »
. ~y - , - ’ ~ + e-
‘ ’ Z ‘ a.
’ - . . “> 7 "
: .
. ~~ > ¥ . _ ¥ : ¥ . .
‘ ‘ ‘ : ‘ ‘
> - “~ + a ‘ 7 _ -
‘ ‘ ‘ ‘
~ > , > = © > + ~~ » ‘ » » . ‘ » : 2
’ . y r > ’ _-/ & Wy» , ~ +
‘ . . vv
‘ ’ “7 > ~ y . . ’ ‘
w . r . 4 | i¢ . ‘
. : “~ » > > ~_ >
: . > r | .
~~ -- he [ " > ‘ y rhs
. ™ . " » . « . : . ’ > , - ~ >
‘ ‘ ‘ ‘ ‘ ' +. . ‘ ‘ ay
- -
’ - ‘ . ‘ . =
‘ ‘ ‘ ‘ . . i
. » , - > > = " - > ~ = +
> ¥ a ~~ > ~ ¥ ~ _ .

=%34e

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

‘>
mo
: 4
7 >
» >
Ad
, i
q >
A
7 +
A

sabe
‘ 7
-
"bas
- +
>

—"

-6l=-

defendant, LLOYD DENVER WHIT

4
iY
+ 7
”
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,

—
“eo 5 +
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1423%3A2. Public record. Not legal advice.