Opposition — Los Angeles Times v. Hartley

IN THE

Supreme Court of the United

October Term, 1976

No. 76-71

Service of the within and receipt of a copy

thereof is hereby admitted this .................... day

of August, A.D. 1976.

Los ANGELES TIMES, a division of THE TIMES MIRROR

COMPANY, PAUL CONRAD, THE TIMES MIRROR

COMPANY, a corporation, OTIS CHANDLER, ANTHONY

Day,

Petitioners,

VS.

FRED L. HARTLEY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of California.

BRIEF IN OPPOSITION.

FRANK J. KANNE, JR.,

615 South Flower Street, Room 903,

Los Angeles, Calif. 90017,

(213) 624-1841,

Attorney for Respondent.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

ETERS RR oe NE A ANE Te 1

Re FI Ge I cseciesnendenrndserinttiideinditevintdamiasay l

(b) Sound Judicial Descretion Calls for a Denial

I iiss tnenttdictnecabiaiibddebidabbaihinibinns 6

I oc sorikiie eneidetichiadiinsiartiiaiainidoastenlh 8

Constitutional Provisions Involved ................022......... 1]

ERE A AC EE Sea enn EDC E a 11

Reasons for Denying the Writ ..........................---------- 14

Point I.

There Was an Issue of Material Fact as to Whether

the Respondent, Fred L. Hartley, Was a Private

Ee Fe scticviinciiensitinilindteaaiitidnaibiiiteamatidis 14

Point II.

There was an Issue of Fact as to Whether the Car-

toon Was Published With Knowledge That It

Was False or With Reckless Disregard of Wheth-

FB 8 fg RRR rey ener oe 15

Point III.

The Cartoon Was Susceptible of a Defamatory

Interpretation by the Average Reader ............ 18

I ecrincice-vnsnsisineniguitinineniaaeasiaimmiaibembeemienia 20

Appendix A. California Code of Civil Procedure,

BE OW senisevnnsnenceesinncictititehniamiadnasinninapeaniiaiia App. p. 1

TABLE OF AUTHORITIES CITED

Cases Page

Alioto v. Cowles Communication, Inc. (CA 9) 519

F.2d 777 (Cert. denied United States Supreme

RRR ern eon

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

RIED -sipiucndiddl hiataiehinniedieuniiduccncistentatnedtinieal 3, 4,

Dugar v. Happy Tiger Records, Inc., 41 Cal. App. 3d

EER rn CI EEE

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)

SO he oe eee

SED): siivonsesnitelinciuiiniieniiibaitianideinisenieinbiiiadaiainasel 6,

Gregory v. McDonnell Douglas Corp., 17 Cal. 3d

ee Bk ED citieittibinlaiiidli a lees,

Jacob v. New York, 315 U.S. 752, 62 S.Ct. 854

5, RRA, SOe es IE EEO NR AR I NE

Keniston v. American National Insurance wiiacled

fe en Sf Ee. y | eames

MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536

| _, RBOERCRRSS RSC R OIE tener wenn n aN meee 18,

Mellon v. Times Mirror, 167 Cal. 587 (1914) ..........

Montadon v. Triangle Publications, 45 Cal. App. 3d

938 (Cert. denied United States Supreme Court,

RO et on eiaainlanieeialia

Mullins v. Brando, 13 Cal. App. 3d 409 (1970) ......

New York Times v. Sullivan, 376 U.S. 254, 11 L.Ed.

Ce ls Fe ED kctdkteintntindntectionrincanadans

Patton v. Royal Industries, Inc., 263 Cal. App. 2d

FADE vsicosintonechnsctateisanathintoniabinisatinpleavvneiiamueeiananaaias

17

12

Page

Rinaldi v. Village Voice, Inc., 45 A.D. 2d 180, 365

N.Y.S.2d 199, Cert. denied 423 U.S. 883, 96 S.Ct.

- ee 78 Be oe

Stone, Warden v. Powell, ........ | SS (July 6

TI UIE cossvstalAutildshieieceisleinsipioascabiiiaatiaiaiatatiiitasixie *

Thomas H. Maloney & Sons v. E. W. Scripps Co., 45

Ohio App. 2d 105, 334 N.~.2d 494, Cert. denied.

423 U.S. 883, 96 S.Ct. 151, 46 L.Ed.2d 111

PER ESET. a eee ee eS ee

Time, Inc. v. Firestone, ........ | See , 47 L.Ed.

2 2 RS eee er ae 4,

Time, Inc. v. Ragano, 427 F.2d 219 (5 Cir. 1970)

ORE SoA Oe OEE ER EMS RR A ENT TD, 6,

Yorty v. Chandler, 13 Cal. App. 3d 467 (1970)

a ee eee Oe ne eR eR ES Le 16, 17,

Rules

California Rules of Court, Rule 977 .........000..0000000...

Rules of the Supreme Court of the United States, Rule

I ihe eee elie ete

DTD sncnsthivontiniensaniniielanpinseaiibasnsiiaieiiichabibisiatentennn

BINED cccciesnetinnsesanmniestnnpencmendiinnambnainiecitiinieniiiion

Statutes

California Code of Civil Procedure, Sec. 437c ........

United States Constitution, Seventh Amendment ........

United States Constitution, Fourteenth Amendment

5

19

IN THE

Supreme Court of the United States

October Term, 1976

No. 76-71

Los ANGELES TIMES, a division of THE TIMES MIRROR

COMPANY, PAUL CONRAD, THE TIMES MIRROR

COMPANY, a corporation, OTIS CHANDLER, ANTHONY

Day,

Petitioners,

vs.

Frep L. HARTLEY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of California.

BRIEF IN OPPOSITION.

Jurisdiction.

Appellants invoke jurisdiction of the Supreme Court

of the United States under 28 U.S.C. §1257(3) and

Supreme Court Rule 19.

(a) Lack of Finality.

Respondent objects to the jurisdiction of the court

on the grounds that the decision sought to be reviewed

is not a “final judgment or decree”.

“1257. Final judgments or decrees rendered by

the highest court of a State in which a decision

uniiiens

could be had, may be reviewed by the Supreme

Court as follows:

* * *

(3) By writ of certiorari, where the validity of

a treaty or statute of the United States is drawn

in question on the ground of its being repugnant

to the Constitution, treaties or laws of the United

States or where any title, right, privilege, or im-

munity is specially set up or claimed under the

Constitution, treaties or statutes of or commission

held or authority exercised under, the United

States.”

The petitioners make the bald statement that jurisdic-

tion is invoked under 28 U.S.C. §1257(3), but they

make no showing or argument in support thereof. The

failure of the petitioners to present with accuracy,

brevity and clearness whatever is essential to show

jurisdiction is a sufficient reason to deny the petition.

Supreme Court Rule 23(4).

Fred L. Hartley commenced this action for libel

in the Superior Court of California, County of Los

Angeles on March 27, 1974 against Paul Conrad,

Los Angeles Times, Otis Chandler and Anthony Day.

Prior to the taking of any depositions, submission of

interrogatories or other discovery proceedings, the de-

fendants made a motion for summary judgment contend-

ing that:

“(1) The alleged defamatory publication concerns

public figures and matter of public interest and

is privileged under the First and Fourteenth

Amendments to the United States Constitution.

The alleged defamatory publication Was made in

good faith and in the reasonable belief that it

_

was true and without knowledge of its alleged

falsity and without reckless disregard of its truth

or falsity. Such constitutional privilege provides

a complete defense to the action; and therefore

the action has no merit and there are no triable

issues of fact.

“(2) The alleged defamatory publication is not

defamatory, no cause of action has been stated

against any defendant and therefore the action

has no merit and there are no triable issues of

fact.” [R. 30, lines 1-12].

The motion was granted on September 27, 1974

and judgment for the defendants was entered on Octo-

ber 11, 1974. On February 3, 1976, in an unpublished

interlocutory opinion, the California Court of Appeal

held that summary judgment was improperly granted

and reversed the judgment. The Supreme Court of

California denied a hearing on April 22, 1976 (Petition,

Appendix B). Thus, the case is now back in the

Superior Court of the County of Los Angeles pending

trial. There is no final judgment or any judgment

by the highest court of the State or at all.

Petitioners are unable to establish jurisdiction in

the Supreme Court pursuant to 28 U.S.C. §1257(3).

They are likewise unable to establish jurisdiction under

the Supreme Court rulings giving the requirement of

finality a practical rather than a technical construction.

Gillespie v. United States Steel Corp., 379 U.S. 148

(1964); Cox Broadcasting Corp. v. Cohn, 420 USS.

469 (1975).

Mr. Justice White’s opinion in Cox Broadcasting

Corp. v. Cohn, supra at pages 476-487 analyzes the

requirement of finality as to a federal issue.

a

One of the most important circumstances in determin-

ing finality is whether the additional State court pro-

ceedings would decide other federal questions that might

also require review by the Supreme Court at a later

date (/bid., p. 477). We must therefore look at the

circumstances surrounding the federal issue in the in-

stant case. Unfortunately the petition is of little help

and is actually misleading. In their opening sentence

petitioners say:

“This is a libel action involving public figures

and matters of public interest.” (Petition, p. 1).

The respondent has at all times asserted that he

is a private individual [R. pp. 131-135 and 159-162]

and that Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974) sets forth the extent of First Amendment protec-

tion.

“We hold that, so long as they do not impose

liability without fault, the States may define for

themselves the appropriate standard of liability

for a publisher or broadcaster of defamatory false-

hood injurious to a private individual.” (/bid.,

at p. 347).

The California Court of Appeal decision found it

unnecessary to rule on the private individual vs. public

figure issue, since it held there was an issue of fact

on the alternative basis for liability, i.e., whether the

defamatory cartoon was published with malice in the

federal sense (Petition, Appendix A, p. 8). The Court

of Appeal having reversed the judgment of the Superior

Court, the issue of private individual vs. public figure

is open and undecided. In the intervening period this

Court has decided Time, Inc. v. Firestone, .... U.S.

sal 47 L.Ed.2d 154 (1976) and further defined the

_

meaning of “public figure” for the purposes of the

First and Fourteenth Amendments.

The “public figure” vs. “private individual” issue

being unresolved in the State Court, there is certainly

a possibility that the further proceedings might require

review by the Supreme Court. Hence, there is no final

judgment and piece-meal review is contrary to 28 U.S.C.

§1257(3).

In those cases where the Supreme Court has relaxed

the finality requirement, the State judgment has been

plainly final on the federal issue. In Cox, supra, the

Georgia Supreme Court’s judgment rejected challenges

under the First and Fourteenth Amendments to the

state law authorizing damage suits against the press

for publishing the name of a rape victim whose identity

was revealed in the course of a public prosecution.

The instant State judgment decides only that the cartoon

in question is susceptible of a defamatory interpretation

and that there is an issue of fact as to whether it

was published with malice.

Jurisdiction should be rejected for lack of finality,

as otherwise the Court will be examining the merits

of the case before determining jurisdiction, as pointed

out by Mr. Justice Rehnquist in his dissent in Cox

Broadcasting Corp. v. Cohn, supra, pages 507-510.

The present action alleges that petitioners published

a cartoon that libelled a private individual, and that

it was published with knowledge of its falsity or with

reckless disregard of whether it was true or false.

The unreported decision of the California Court of

Appeal merely gives the respondent the right to have

a jury determine the issues. The interpretation of a

cartoon and its subtle and not so subtle meanings is

a on

more complex than the interpretation of an article.

A sharper copy of the cartoon is included on the

opposite page.

In Goidwater v. Ginzburg (S.D.N.Y. 1966) 261

F.Supp. 784 at 788 the District Court said, “The

issue of actual malice on the part of defendants seems

particularly inappropriate for disposition by summary

judgment because it concerns ‘motive, intent, and sub-

jective feelings, and reactions.’ Empire Electronics Co.

v. United States, 311 F.2d 175, 180 (2nd Cir. 1962);

see also Moore’s Federal Practice (2d ed.) 2581. The

Supreme Court has cautioned against summary judg-

ment ‘where motive and intent play leading roles.’

Poller v. Columbia Broadcasting, 368 U.S. 464, 474

(1962).”

In Time, Inc. v. Ragano (5th Cir. 1970) 427 F.2d

219 the Court of Appeal affirmed an order denying

a motion for summary judgment in a case in which

Time had published a picture of seven men including

the plaintiff, an attorney, and referred to the group

as “top Cosa Nostra hoodlums.” The Court said at

page 221:

“In view of the principle that all inferences to

be drawn from the underlying facts must be viewed

in the light most favorable to the party opposing

the motion for summary judgment, e.g. United

States v. Diebold, Inc. (1962) 369 U.S. 654

. we think that a genuine issue of material

fact exists... .”

(b) Sound Judicial Discretion Calls for a Denial of Jurisdiction.

“A review on writ of certiorari is not a matter

of right, but of sound judicial discretion and will

be granted only where there are special and impor-

tant reasons therefor.” Supreme Court Rule 19(1).

Federal government diverts 500,000 barrels of Union crude

vil from Southern California to Guam.—News item

cctlicn

Sound judicial discretion calls for a denial of juris-

diction because the decision of the State Court is

not contrary to the decisions of the Supreme Court.

Harmonious state-federal relations are enhanced when

this Court rejects review of a State court’s decision

on matters of peculiarly local concern.

The petitioners are asking the Supreme Court of

the United States to rule, as a matter of law, that

they are entitled to summary judgment. In order to

justly consider such a request, this Court would have

to review all of the evidence before the trial court,

the serious objections raised under the California law

as to the admissibility of large quantities of the evidence

[R. 162, line 16 to 165, line 6 and see discussion

below under Questions Presented], the California law

of defamation, and possible interpretations of the subject

cartoon by reasonable viewers.

The petition fails to demonstrate any reasons why

this Court should undertake such a task that more

fittingly belongs in a trial court. |

The unpublished interlocutory opinion of the Court

of Appeal applies existing decisions to the particular

facts of this case.’ It does not purport to decide

any question that would seriously erode freedom of

the press under the First Amendment.”

1Rule 977 of California Rules of Court provides that an

SS a a oS oe > © > °

party in any r action or proceeding except when opinion

ts relevant under the doctrines of the law of the case, res

judicata or collateral estoppel.

*Cf. Stone, Warden v. Powell, .... U.S. .... (July 6, 1976,

74-1055) where it was held that Federal exclusionary rules

on search and seizure claims cannot be raised in federal court

review of state convictions. In footnote 31 at page 24 of

Slip Opinion the Court said:

(This footnote is cvntinued on next page)

The petition for writ of certiorari should be denied

for lack of jurisdiction.

Questions Presented.

Respondent disputes petitioners’ recitation under

Questions Presented. At page 2 of their petition, peti-

tioners say:

“On December 20, 1973 petitioner Los Angeles

Times (‘The Times’) published an editorial car-

toon expressing an opinion sharply critical of the

apparent indifference of Union and respondent

Fred L. Hartley, Union’s president (‘Hartley’) to

the plight of Los Angeles, created by the diversion

of the tanker and their unexplained failure to

take any steps to mitigate the loss suffered by

Los Angeles as a result of the diversion.”

This recitation is inaccurate in stating (1) that the

cartoon was an expression of opinion, and (2) in

attributing to the respondent an apparent indifference

to the plight of Los Angeles.

The meaning and intent of a cartoon is less precise

than that of an article and this makes more difficult

the delineation of what is fact and what is opinion.®

“Resort to habeas corpus especially for D .. poy other

than to assure that no innocent person suffers an uncon-

stitutional loss of liberty, results in serious intrusions on

values important to our system of government. They include

‘(i) the most effective utilization of limited judicial re-

sources, (ii) the necessity of finality in criminal trials,

(iii) the minimization of friction between our federal and

state systems of justice, and (iv) the maintenance of the

constitutional balance upon which the doctrine of federalism

is founded.’ Scheckloth v. Bustamonte 412 U.S. at 259

(Powell, J. concurring).” :

“Under the First Amendment there is no such thing as

a false idea. However pernicious an opinion may seem, we

et

onions

In opposition to the motion for summary judgment,

respondent filed a declaration by Donald Goodenow,

managing editor of the Los Angeles Herald-Examiner,

containing a copy of his editorial published on the

day after the cartoon was published. It read:

“UNFAIR ATTACK”

“There is no excuse for such irresponsible jour-

nalism as exemplified by a vicious editorial cartoon

which appeared in the Los Angeles Times yester-

day.

“For some cloudy minds, it obviously is open

season to attack industry, particularly the oil in-

dustry, regardless of truth. The cartoon in question

implied that an oil company’s president was re-

sponsible for diverting 500,000 barrels of oil from

Southern California to Guam.

“The truth: the U.S. government ordered the oil

sent there, not the oil company. It was diverted

for Military use.

“There are many problems in the so-called fuel

crisis, but we never will solve them with distorted

accusations and twisted reasoning and vitriolic at-

tacks against our business leaders.

“This is the time for clear heads and cool action.

Let’s encourage leadership, not bury it in the

muck of enervating vendettas.” [R. pp. 151-153].

The California Court of Appeal stated the rule that

if more than one meaning —, be derived by the

depend for its correction not on the conscience of judges and

juries but on the competition of other ideas. But is

no constitutional value in false statements of fact. Neither the

intentional lie nor the careless error materially advances society’s

interest in uninhibited, robust and wide-open debate on public

issues.” Gertz v. Robert Welch, Inc., supra, at 339-40.

oniifiinen

average reader, a question is presented for the jury’s

determingtion. It further found that it was reasonable

to conclude that a substantial number of viewers of

the cartoon might construe it to portray respondent

as having some causal* relationship to the governmental

diversion order (as the editor of the Herald-Examiner

did). It then said,

“Such a charge is not a mere opinion, but rather

a statement of fact.” (Petition, Appendix A, p.

7).

Petitioner’s attempt to categorize the cartoon as an

opinion attributing to the respondent an apparent indif-

ference in the plight of Los Angeles is unsound. The

Court of Appeal pointed out that there was no basis

for assuming that the average reader would have known

the background matters nor for assuming that such

a reader would give to the cartoon such a non-libelous

interpretation (Petition, Appendix A, p. 5).

The determination of whether a publication is one

of fact or opinion is a question of law to be decided

by the Court after looking at the nature and context

of the communication as a whole.

Gregory v. McDonnell Douglas Corp., 17 Cal.3d

596 (July 23, 1976).

The California Court of Appeal having ruled that

the cartoon contained a statement of fact, it is mis-

leading for petitioners to refer to it as an expression

of opinion.

In addition to disputing the prefatory statement under

the heading of Questions Presented, respondent contends

‘There is a significant typographical error at page 6 of

Appendix A to petition where the word “casual” is printed

rather than “causal” as used by the Court of Appeal.

|

that petitioners’ specific statement of questions is inade-

quate.

If the Court accepts jurisdiction, the issues are:

1. Was there an issue of material fact as to wheth-

er the respondent, Fred L. Hartley, was a private

or public figure?

2. Was there an issue of material fact as to whether

the cartoon was published with knowledge of

its falsity or with reckless disregard of whether

it was true or false?

3. Was the subject cartoon susceptible of a defam-

atory interpretation by the average reader?

Constitutional Provisions Involved.

In addition to the First and Fourteenth Amendments,

United States Constitution, the Seventh Amendment

is involved:

“In suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact

tried by a jury shall be re-examined in any court

of the United States, other than according to the

rules of the common law.” (U.S. Const., Amend-

ment VII).

Statement of the Case.

Respondent objects to petitioners’ Statement of the

Case (Petition, 4-9) in its entirety and asks that it

be stricken. As previously noted, this is an action

by respondent Fred Hartley against cartoonist Paul

Conrad, et al., for an allegedly defamatory cartoon

drawn by Conrad and published in the Los Angeles

Times on December 20, 1973. The petitioners made

a motion for summary judgment pursuant to California

— =

Code of Civil Procedure, Section 437c, on the grounds

of constitutional privilege and claimed that Hartley

was a public figure and that the cartoon was published

without malice and was not defamatory. The trial court

granted the motion for summary judgment and the

Court of Appeal reversed.

There has been no discovery, no trial and there

are no findings of fact. The reversal of the summary

judgment makes the trial court ruling a total nullity.

It is indeed presumptuous, if not downright misleading,

to attempt a recitation of facts as petitioners do.

California law imposes stringent requirements before

granting the drastic relief of summary judgment, which

denies a litigant the right to a trial. California Code

of Civil Procedure, Section 437c provides in part:

“Supporting and opposing affidavits or declara-

tions shall be made by any person on_ personal

knowledge, shall set forth admissible evidence, and

shall show affirmatively that the affiant is compe-

tent to testify to the matters stated therein.”

The documentation relied upon by the trial court

must consist of competent evidence, irrespective

of whether objection is made thereto.

Dugar v. Happy Tiger Records, Inc., 41 Cal.

App.3d 811, 815, 817 (1974).

Objections were made in the instant case [R. 162,

line 16 to 165, line 6].

The declaration of petitioner Anthony Day consisted

of 59 pages, including 21 exhibits of copies of articles

published in the Los Angeles Times and written by

at least twelve different staff writers [R. 67 to 126].

5The full text of Section 437c is set forth in Appendix

A to this brief.

=~ es se ee

— =

It is apparent that although the declaration of peti-

tioner Day recites:

“I have personal knowledge of the facts stated

herein and if sworn as a witness could competently

testify thereto.” [R. 67, lines 12-13],

his declaration contradicts this. The declaration conclu-

sively shows that it is hearsay by incorporating the

articles of the twelve different staff writers of the

Los Angeles Times, which articles are themselves based

on hearsay.° The Day declaration does not satisfy

the requirement of Code of Civil Procedure Section

437c -that the declaration “shall show affirmatively

that the affiant is competent to testify to the matters

stated therein.”

Keniston v. American Nat. Ins. Co., 31 Cal.

App.3d 803, 813 (1973).

Petitioners are attempting to usurp the function of

the jury and elevate their contentions to the status

of facts. They are not entitled to do this.

*The efforts of Day to incorporate reporter Lee Dye’s slanted

version of the “Oil Caper” story of December 19, 1973 [Day

declaration, R. 72, lines 15-29 and Ex. 16, p. 108] which

in turn cedits unidentified “various sources and spokesmen,”

show that the contents of the articles were not within the

= knowledge of Day, the deciarant, or even that of

Dye, the reporter.

ones:

REASONS FOR DENYING THE WRIT.

POINT I.

There Was an Issue of Material Fact as to Whether

the Respondent, Fred L. Hartley, Was a Private

or Public Figure.

Petitioners contended that Fred Hartley was a public

figure and that the publication of the defamatory car-

toon was protected by the constitutional privilege. Re-

spondent contended that he was not a public figure,

but a private individual entitled to be protected from

libelous publications. The California Court of Appeal

held that there was an issue of fact as to whether

the cartoon had been published with reckless disregard

of whether it was true or false. Since this alternative

basis of liability necessitated a reversal of the summary

judgment, the Court of Appeal found it unnecessary

to rule on whether there was an issue of fact with

regard to respondent’s status as a private figure.

The Supreme Court should deny the petition for

writ of certiorari, since to grant it would involve this

Court in having to make evidentiary rulings on decla-

rations and other evidence offered in the irial court

below.

The entire effort of the petitioners to show that

Hartley was a public figure was based on articles

in their own newspaper from “various sources and

spokesmen,” the competency of which was challenged.

(See discussion above under “Statement of the Case.” )

The determination of whether Hartley is a private

or public figure should be determined in a trial court

where the evidence can be fully developed, its compe-

tency tested, and the recent elucidation by the Supreme

_- =

Court in Time, Inc. v. Firestone, supra, at page 5

of Slip Opinion applied.

To do less than this would jeopardize the respondent's

constitutional right to a jury trial. (United States Consti-

tution, Amendments VII and XIV.)

Jacob v. New York, 315 U.S. 752, 62 S.Ct.

854 (1941).

Principles applicable to summary judgment motions

generally, are applicable to such motions when made

in a defamation action. Goldwater v. Ginzburg, supra;

Time, Inc. v. Ragane, supra; Rinaldi v. Village Voice,

Inc., 45 A.D. 2d 180, 365 N.Y.S.2d 199, cert. den.,

423 U.S. 883, 96 S.Ct. 153, 46 L.Ed. 112 (1975);

Thomas H. Maloney & Sons, Inc. v. E. W. Scripps

Co., 43 Ohio App. 2d 105, 334 N.E.2d 494, cert.

den., 423 U.S. 883, 96 S.Ct. 151, 46 L.Ed.2d 111

(1975). Goldwater further held that upon such a motion

in a defamation case, as in all other actions, the

Court must resolve all ambiguities and draw all reason-

able inferences in favor of the party opposing the

motion.

POINT Il.

There Was an Issue of Fact as to Whether the Cartoon

Was Published With Knowledge That It Was False

a | a 2 ee

True or False.

The defendants’ attempt to show good faith in pub-

lishing the cartoon does no more than raise a possible

issue for determination by the jury. They admit that

they at all times knew the government diverted the

oil tanker. This alone raises a triable issue of knowledge

of falsity dependent upon the interpretation of the

cartoon by the average reader.

— =

There was evidence to raise an issue of fact as

to whether the defamatory cartoon was published with

knowledge of its falsity or reckless disregard of its

truth or falsity.

It is apparent that the editor of the Los Angeles

Herald-Examiner interpreted the cartoon as implying

that Hartley was responsible for the oil diversion. (See

quotation of editorial, supra, under Questions Pre-

sented. )

As a result of the publication of the subject cartoon

the Board of Directors of the Los Angeles Chamber

of Commerce unanimously adopted the following resolu-

tion:

“The Board of Directors of the Los Angeles

Area Chamber of Commerce deplores the personal

attack on a prominent business leader and a major

employer in the Los Angeles area, carried in

the Conrad cartoon.

“Solutions to the great issues of our time will

come from the concerns, imagination and initia-

tive of the business leadership working in concert

with the government. Personal attacks such as

carried in this cartoon of the Times are a part

of the problem and contribute nothing to solu-

tions.” [R. pp. 148-149].

Mr. Justice Compton of the California Court of

Appeal, has expressed the opinion that Conrad’s car-

toons amount to highly unreasonable conduct consti-

tuting an extreme departure from the standards of in-

vestigation and reporting ordinarily adhered to by re-

sponsible publishers.

Justice Compton in his concurring opinion in Yorty

v. Chandler (1970) 13 Cal.App.3d 467 at p. 479,

referring to the defendant Paul Conrad said:

enlifiien

“The protection of the freedom of a responsible

press does not require that we insulate from liability

for libel the artists whose pens drip venom and

whose skill in drawing and cartooning far exceeds

their sense of responsibility, respect for the truth

and the depth of their understanding of public

issues.”

Defendants cannot excuse their conduct by saying

they did not intend to charge Hartley with being respon-

sible for the oil diversion. In Montadon v. Triangle

P. blications (1975) 45 Cal.App.3d 938 (Cert. denied,

U.S. Supreme Court, October 6, 1975) the Court af-

firmed a libel judgment based on an article that resulted

in a false impression of Miss Montadon’s status and

said at page 949:

“While this result was apparently not intentional,

it was one which those responsible should have

foreseen and one which showed a reckless disre-

gard for the truth or falsity of the statement.”

Miss Montadon was a public figure and the Court

held there was ample proof of malice to satisfy the

constitutional requirement.

The grave danger of a court depriving a litigant

of his constitutional right to a jury trial in a libel

action was noted and corrected by the Ninth Circuit

Court of Appeal in Alioto v. Cowles Communications,

Inc., 519 F.2d 777 (1975) (Cert. denied, U.S. Supreme

Court, Nov. 3, 1975). The trial judge in Alioto had

taken the question of actual malice from the jury

and granted a judgment n.o.v. for defendant. The

Court of Appeal reversed.

— Ss

POINT Ii.

The Cartoon Was Susceptible of a Defamatory Inter-

pretation by the Average Reader.

In their Point I petitioners argue that no reasonably

informed reader could have believed other than that

the federal government was responsible for the diversion

of the oil tanker. This is an absurd contention in

view of the unanimous ruling of the Court of Appeal

that the cartoon was susceptible of a defamatory inter-

pretation (and the denial of a hearing by the California

Supreme Court). The clever writer versed in the law

of defamation who deliberately casts a grossly defama-

tory imputation in ambiguous language may be held

liable.

MacLeod v. Tribune Publishing Co., 52 Cal.2d

536, 551 (1959°

It would certainly seem that if that many appellate

judges could construe the cartoon as being defamatory,

it is impossible for the petitioners to establish that

there is no issue of fact for a jury to determine.

Respondent filed a declaration by Donald Goodenow,

managing editor of the Los Angeles Herald-Examiner

in opposition to the motion for summary judgment.

A copy of Mr. Goodenow’s editorial published the

day after the cartoon was published is quoted above

at page ......... The editorial said in part: | |

“The cartoon in question implied that an oil com-

pany’s president was responsible for diverting 500,-

000 barrels of oil from Southern California to

Guam.”

At a minimum, this evidence effectively refutes peti-

tioners’ contention that no reasonably informed reader

==

could have believed other than that the federal govern-

ment was responsible for the oil diversion.

Under the temper of the times and contemporary

public opinion, a substantial number of viewers of

the cartoon might construe it to portray appellant as

having some causal relationship to the governmental

diversion order.

The rule of law is that it is for the trier of

fact to determine whether a publication is defamatory,

unless there can be only one reasonable interpretation

of the cartoon, and that interpretation is non-libelous.

Yorty v. Chandler, 13 Cal.App.3d 467, 475

(1970);

MacLeod v. Tribune Publishing Co., 52 Cal.2d

536, 546 (1959);

Mellon v. Times Mirror, 167 Cal. 587, 592

(1914).

The publication is to be measured not so much

by its effect when subjected to the critical analysis

of a mind trained in the law, but by the natural

and probable effect upon the mind of the average

reader.

MacLeod v. Tribune Publishing Co. supra, at

547.

The test is whether in the mind of the average

reader the publication, considered as a whole, could

reasonably be considered as defamatory.

Patton v. Royal Industries, Inc., 263 Cal.App.2d

760, 765;

Mullins v. Brando, 13 Cal.App.3d 409, 415

(1970).

The purpose of allowing the plaintiff to have a

jury trial is to determine the effect of the cartoon

—20—

on the average reader. One can hypothesize interminably

on this, but it is sufficient at this point that the

cartoon be susceptible of a defamatory meaning. The

defendants come squarely within the definition of the

“clever writer versed in the law of defamation who

deliberately casts a grossly defamatory imputation in

ambiguous language.”

Conclusion.

The petition for writ of certiorari should be denied

because there has been no final judgment by the highest

court of the State of California. The petitioners are

asking the United States Supreme Court to ruie as

a matter of law that respondent Hartley is a public

figure and that the cartoon was not published with

a reckless disregard of the truth. They ask the Supreme

Court to do thiv even though the evidence has not

been developed ana tested for admissibility.

In the cases since New York Times v. Sullivan,

376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964)

the Supreme Court has sought to balance the Constitu-

tional protection of the press with the protection of

one’s name. It is unrealistic to suggest that the present

action has resulted in the slightest timidity or chilling

of the petitioners. The respondent should be allowed

to proceed with the trial of the case on its merits.

Respectfully submitted,

FRANK J. KANNE, JR.,

Attorney for Respondent

Fred L. Hartley.

APPENDIX A.

California Code of Civil Procedure, § 437c.

§ 437c. [Summary proceedings on claim that action

or defense is unmeritorious: Motion: Support of motion:

Procedure on motion: Judgment: Appeal] Any party

may move for summary judgment in any action or

proceeding if it is contended that the action has no

merit or that there is no defense thereto. The motion

may be made at any time after 60 days has elapsed

from the general appearance in the action or proceeding

of, each party against whom the motion is directed.

Notice of the motion and supporting papers shall be

served on the other party to the action at least 10

days before the time fixed for the hearing. The filing

of such motion shall not extend the time within which

a party must otherwise file a responsive pleading.

The motion shall be supported or opposed by affi-

davits, declarations, admissions, answers to interroga-

tories, depositions and matters of which judicial notice

shall or may be taken.

Such motion shall be granted if all the papers

submitted show that there is no triable issue as to

any material fact and that the moving party is entitled

to a judgment as a matter of law. In determining

whether the papers show that there is no triable issue

as to any material fact the court shall consider all

of the admissible evidence set forth in the papers

and all inferences reasonably deducible from such evi-

dence, except summary judgment shall not be granted

by the court based on inferences reasonably deducible

from such evidence, if contradicted by other inferences

or evidence, which raise a triable issue as to any

material fact.

_ =

Supporting and opposing affidavits or declarations

shall be made by any person on personal knowledge,

shall set forth admissible evidence, and shall show

affirmatively that the affiant is competent to testify

to the matters stated therein.

If a party is otherwise entitled to a summary judg-

ment pursuant to the provisions of this section, summary

judgment shall not be denied on grounds of credibility

or for want of cross-examination of witnesses furnishing

affidavits or declarations in support of the summary

judgment, except that summary judgment may be denied

in the discretion of the court, where the only proof

of a material fact offered in support of the summary

judgment is an affidavit or declaration made by an

individual who was the sole witness to such fact; or

where a material fact is an individual’s state of mind,

or lack thereof, and such fact is sought to be estab-

lished solely by the individual’s affirmation thereof.

If it appears that the proof supports the granting

of such motion as to some but not all the issues

involved in the action, or that one or more of the

issues raised by a claim is admitted, or that one or

more of the issues raised by a defense is conceded,

the court shall, by order, specify that such issues are

without substantial controversy. At the trial of the

action the issue so specified shall be deemed established

and the action shall proceed as to the issues remaining.

If it appears from the affidavits submitted in opposi-

tion to the motion that facts essential to justify opposi-

tion may cist but cannot, for reasons stated, then

be presented, the court shall deny the motion, or order

a continuance to permit affidavits to be obtained or

discovery to be had or may make such other order

as may be just.

—_ we

If the court determines at any time that any of

the affidavits are presented in bad faith or solely for

purposes of delay, the court shall order the party

presenting such affidavits to pay the other party the

amount of the reasonable expenses which the filing

of the affidavits caused such other party to incur.

Except where a separate judgment may properly

be awarded in the action, no final judgment shall

be entered on a motion for summary judgment prior

to the termination of such action, but the final judgment

in such action shall, but the final judgment in such

action shall, in addition to any matters determined

in such action, award judgment as established by the

summary proceeding herein provided for.

A summary judgment entered under this section is

an appealable judgment as in other cases.