Petition — Bandelin v. Pietsch

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77-2154 ws 8 IST

Rar sae MICHAEL RODAK, JR, CLERIE

In the Supreme Court of the — ae

United States

October Term, 1977

Glenn E. Bandelin, Petitioner,

vs.

L. E. Pietsch, Sandpoint News-Bulletin, Inc.;

Morgan Monroe, Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Idaho

Peter B. Wilson

WILSON & WALTER

Counsel] for Petitioner,

Box 749

Bonners Ferry, Idaho 83805

Piatt Hull

Hull, Hull & Wheeler

Attorneys at Law

P. O. Box 709

Wallace, Idaho 83873

Fred Gilbert

Hamblen, Gilbert & Brooke, P. S.

1215 Washington Mutual Building

Spokane, Washington 99201

Counsel of record for respondents.

August 2, 1977

Prrr Pr =

SUBJECT INDEX

Opinions Below __..._................... —

SEE ee an 2

CURR TPT assesses 8

EEE A 4

SESE LEP,

Reasons for Granting This Writ:

es 10

Rees si ied 11

le RINT Hee Pe SL 18

FE LE a SIT a 15

Table of Cases, Textbooks

a oe x i

TABLE OF CASES, TEXTBOOKS

AND STATUTES

Bandelin v. Quinlan,

94 Idaho 858, 499 P. 2d 557 (1972) a 6

Bandelin v. Sandpoint News-Bulletin, et al,

COA ES OF) ULL 7c ere is

Constitution of the United States,

Article 3, Section 2, paragraph1...... ss 2

Constitution of the United States,

pS RE CNS ee 4

Constitution of the United States,

p REELS 20s RA ee ae 4

Constitution of the United States,

Amendment 14, Section 1 F See

Gertz v. Welch, 418 U. S. 323, 94 S. Ct. 299

PR Ry OL} | eee meee 10, 11

Idaho Session Laws, 1971, Chapter 111, p. 233 6

Rule 19.1.9 (a) Revised Rules of the

Supreme Court of the United States _..-___ 2

Time v. Firestone, 424 U. S. 448,

96 S. Ct. 958, 47 L. Ed 2d 154 (1976) ___ 10, 11, 12

Time v. Pape, 401 U. S. 279, 91 S. Ct. 633,

A I ‘ciicsinscisicibniaialinepeanpteniemeniaarennise 11

ee eS eee 2

In the Supreme Court of the

United States

October Term, 1977

i

Glenn E. Bandelin, Petitioner,

vs.

L. E. Pietsch; Sandpoint News-Bulletin, Inc.;

Morgan Monroe, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF IDAHO

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States.

GLENN E. BANDELIN, the petitioner herein,

prays that a writ of certiorari issue to review the

judgment of the Supreme Court of Idaho entered in

the above-entitled case on May 13, 1977.

Opinions Below

The opinion of the Supreme Court of Idaho was

entered March 14, 1977, is reported at 563 P. 2d 395

and is printed in Appendix A hereto, infra, page 16.

The Judgment of Dismissal of the District Court

1

of the First Judicial District of the State of Idaho, in

and for the County of Bonner was entered April 16,

1975, and is printed in Appendix A, hereto, infra,

page 27. The Findings of Fact and Conclusions of

Law of the Judge of said District Court are printed

in Appendix A, hereto, infra, p. 28. The Order

denying Appellant’s Petition for rehearing was

entered May 13, 1977, and is printed in Appendix A,

hereto, infra, p. 39. The Order denying pending

motions for attorneys’ fees (by respondents) and for

permission to make discovery (by appellant) was

entered May 20, 1977, and is printed in Appendix A,

hereto, infra, p. 40.

Jurisdiction

The Judgment (Opinion) of the Supreme Court

of Idaho (Appendix A, infra, p. 16) was entered on

March 14, 1977. A timely petition for rehearing was

denied on May 13, 1977 (Appendix A, infra, p. 39).

The jurisdiction of the Court is invoked under Rule

19.1. (a) of the Revised Rules of the Supreme Court

of the United States; 28 USCS, Sec. 1257 (3); and

Article 3, Section 2, page 1 of the Constitution of the

United States.

Questions Presented

1. Does the “actual” malice test as defined in

New York Times v. Sullivan apply to an attorney-

guardian (i.e., is an attorney-guardian a public

official or a public figure)?

2. Should the court or the jury determine

whether an attorney-guardian is a public figure?

3. If the “actual” malice test does apply to an

attorney-guardian, should the determination of

“actual” malice be made by the jury, or by the trial

court on a motion tor summary judgment?

4. If the determination of whether an attorney-

guardian is a public official, public figure or private

person is to be determined by the trial court, is the

attorney-guardian a private person as a matter of law?

5. Can “actual” malice be legitimately found

by a jury under a fact situation wherein a weekly

newspaper for thirteen successive weeks publishes

front page tabloid-type articles about an attorney-

guardian as well as libelling him, when prior to such

situation that newspaper had never given more than

one issue play of even such major events as local

murders?

Statute Involved

1. United States Constiution, Amendment 1:

“Congress shall make no law respecting

an establishment of religion, or prohibit the

free exercise thereof; or abridging the

freedom of speech, or of the press; or of the

right of the people peaceably to assemble,

and to petition the government for a redress

of grievances.”

2. United States Constitution, Amendment 9:

“The enumeration in the Constitution,

of certain rights, shall not be construed to

deny or disparage others retained by the

people.”

3. United States Constitution, Amendment 14,

Section 1:

“All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

state deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.”

4

Statement of Facts

This action arose from a series of fourteen

successive publications in a weekly newspaper of

headline articles that invaded petitioner’s right of

privacy and also libelied him. The right of privacy

issue is found<d upon the newspaper’s act of placing

petitioner in a false light in t2 public eye. As

defendants, petitioner named the corporate owners

(Sandpoint News-Bulletin, Inc.), the publisher and

principal stockholder (L. E. Pietsch), and _ the

managing editor who authored the articles (Morgan

Monroe).

The articles arose from a fact situation based

upon petitioner acting in his capacity as an attorney

at law.

Petitioner was an attorney in his sixties with

some thirty years’ experience. His only major public

service was a state senator early in his career. His

law practice was generally of a low profile type.

Petitioner was the attcrney for and a personal

friend of an elderly lady. She became incompetent,

and petitioner was designated her guardian. While the

guardianship was proceeding, the lady died. At this

point petitioner became attorney for the estate.

Contending ihere were errors in handling the

guardianship, an heir objected to the final accounting

5

of the guardianship. After a hearing, the court noted

that while there were no fiscal shenanigans imputable

to petitioner, petitioner’s failure to strictly follow

Idaho procedure probably amounted to contempt of

court. Therefore, the court instructed that contempt

charges be brought against petitioner. The Idaho

Supreme Court reversed a court finding of guilt for

contempt in Bandelin v. Quinlan, 1972, 94 Idaho 858,

499 P. 2d 557. Interestingly, in 1971, the State of

Idaho adopted the Uniform Probate Code which, had

t been in effect in 1970, would have permitted the

conduct the trial court felt was objectionable (Idaho

Session Laws, 1971, Chapter 111, page 233).

While the hearings on the accounting and on the

contempt charge were going on, the respondents gave

front page coverage to the matter.

Respondents had never, heretofore, given more

than perfunctory reports of even murder cases.

Respondent newspaper was a weekly and for years

had dominated the media image in the community.

Thus, the community was attuned to light media cov-

erage of judicial proceedings.

Suddenly, respondents each week burst upon the

readers front page headlines and stories when even

the most trivial matter occurred relative to the

problem, e.g., appointment of a different judge to

hear one phase of the issue.

6

The newspaper’s customary conservative ap-

proach in news presentation was maintained on all

other stories in each issue; but in dealing with

petitioner the presentation was tabloid style.

During the weekly presentation, defendants

admittedly libelled petitioner at least twice, and

contended an information source was a district judge

when in fact it would have been impossible to

interview that judge at thai time. One libel was a

report that petitioner had been convicted when he

had not.

The reports were also repetitiously flavored with

interest-whetting phrases like “Puzzling Talbot Case,”

“shaken” legal community, “rapid-fire develop-

ments,” Mrs. Talbot declared incompetent by “Mrs.

Sleep, whose former court was abolished earlier this

year,” “Mrs. Talbot’s body had been cremated,” the

mortuary was “ordered not to release an obituary

notice,” and “now-defunct probate court.” All of these

phrases and others like them were used over and over

in each successive report, even though the report

covered only accounting matters and court motions

- - - never charges of hiding bodies or attempting to

rob estates.

Because he was, himself, before the court,

petitioner was unable to publicly respond; he could

only make his presentation to the court.

7

Respondent Monroe obtained great experience as

a reporter of judicial matters when he worked in other

areas.

Over and over again, week in and week out,

respondents repeated the story with all the supposi-

tions, innuendos and libels. Each story was

emblazoned with huge headlines, usually on the front

page, with each story normally being several columns

in length. This would be so, even if the only new

event during the week was a note in the case file

saying a hearing was being “continued to a later date.”

No other area media gave any kind of substantial

coverage to this matter.

As a result of the libels by respondents and also

because respondents held petitioner before the public

in a false light, petitioner filed this action. Subse-

quently under date of May, 1974, Respondents

filed a Motion for Summary Judgment contending

“. . Said publications were privileged under the

First and Fourteenth Amendments to the United

States Constitution” which motion is printed in

Appendix A, hereto, infra, p. 41. The Trial Court

responded by granting the motion and stating in the

Conclusions of law (Appendix A., page 37):

1.

“The newspaper publications complain-

ed of concerned a court proceeding, a public

figure, and a matter of public concern, and

8

therefore, were entitled to the protection of

The First Amendment of the Constitution of

the United States.”

2

“Plaintiff has produced no evidence

that any false statement was published with

knowledge of its falsity or with reckless

disregard of the truth.”

3.

“Plaintiff has produced no evidence

that defendants published any false infor-

mation concerning the plaintiff which con-

stituted an unwarranted invasion of his

right to privacy.”

4.

“There is no genuine issue as to any

material fact and defendants are entitled to

judgment as a matter of law.”

The Supreme Court of Idaho then affirmed the

action of the trial court and outlined the issues as

follows (563 P. 2d at p. 397) (Appendix A., p. 18):

“Two issues are raised on appeal. First,

were the allegedly defamatory newspaper

publications privileged under the First

Amendment. Second, assuming that the

publications were privilieged, were there

disputed issues of material fact as to the

existence of malice that should have been

submitted to a jury.”

i)

Reasons for Granting this Writ

I.

Private Person

The Supreme Court of Idaho has decided this

case in a way probably not in accord with applicable

decisions of this court. That Court acknowledged

(563 P. 2d 395 @ 397) that both Gertz v. Welch, 418

U. S. 323, 94 S.Ct. 2997, 41 L.Ed 2d 789 (1974) and

Time v. Firestone, 424 U. S. 448, 96 S. Ct. 958, 47 L.

Ed 2d 154 (1976) held:

1. There is no privilege given the

media to libel or invade the right of privacy

of a private individual even where the issue

involves matters of public and general con-

cern

2. Reports of judicial proceedings are

not priviliged a priori.

The Idaho Court did then, however, proceed to

find petitioner to be a public figure because as

guardian, he “... was the center of the controversy

that gave rise to the Sandpoint News-Bulletin’s publi-

cations.” (p. 398). This conflicts with the “clear

evidence” rule announced in the Gertz case, 418 U. S.

at 352, 41 L. Ed. 2d 789, 94 S. Ct. 2997. It also con-

flicts with the Gertz comments (418 U. S. at 344, 41

L. Ed 2d 789, 94 S. Ct. 2997) noting that one criteria

in concluding one to be a public figure or public

10

official is his “greater access to the channels of effec-

tive communication.” Additionally, this finding

conflicts with both Gertz and Firestone by resurrect-

ing the theory that one is a public figure automatically

if he was embroiled in a controversy of interest to the

public. (Firestone, 424 U. S. at 454, 47 L. Ed 2d 154,

96 S. Ct. 958; Gertz, 418 U. S. at 346, 41 L. Ed. 2d 789,

94 S. Ct. 2997).

II.

Actual Malice and a Jury

“In ruling on a motion for summary

judgment a trial court’s sole inquiry is

whether such (genuine) issues exist; a trial

court should not resolve any existing factual

issues.” (563 P. 2d at p 399.)

The Idaho Supreme Court made that statement

and then promptly approved the trial court action of

itself deciding the fact issue of actual malice. The

Idaho Court (563 P. 2d 399) held that because of

Time, Inc. v. Pape, 401 U. S. 279, 91 S. Ct. 638, 28 L.

Ed 2d 45 (1971), a reporter’s published mistake or

misinterprelation cannot be a material fact issue

because such an error, alone, could not sustain a jury

finding of actual malice. However, without discussion

to distinguish, the Idaho Court concedes that it per-

ceives the Firestone case to be contra (563 P, 2d 399).

At the same time, the Idaho Supreme Court failed to

acknowledge all errors in the news reports and re-

11

fused to permit accumulation of admitted libellous

statements with “false light” presentations for the

purpose of ascertaining the existence of “actual”

malice.

While failing to permit such an accumulation,

the Idaho Supreme Court acknowledged (563 P. 2d

400), “Although it is conceivable that the character

and content of a publication could be so patently

defamatory that a jury could infer a knowing state

of mind on this basis alone, no case has so held.”

Having acknowledged fact issues go to the jury, the

Idaho court found no fact issue of “actual” malice

for the erroneous reporting even in the face of the

challenge to the reporter’s veracity. The key to the’

conclusions he wrote was his research. He testified

that he founded those conclusions pon interviews

with a district judge and several attorneys. The

attorneys denied the statements attributed to them;

and the district judge not only denied the statements,

but also denied the interview as claimed by the

reporter (Appendix A. infra, p. 25).

This action by the Idaho Court is contrary to

Firestone which said that some fact finder must make

a “conscious determination of the existence or non-

existence of the critical fact” (424 U. S. at 463, 47 L.

Ed 2d 154, 96 S. Ct. 958), and in Idaho, the fact finder

is the jury. |

In essence, what respondents did in this case

12

ee RE

RENTER Tee Oo

was take a charge of contempt and deliberately

destroy a person by reporting around it. The “charge”

was converted to “conviction.” The alleged ground

for the charge was changed from sloppy handling to

contempt of court order. The presentation was to

leave petitioner in a cloud of suspicion as to his ethics

as a lawyer.

The overall effect of writing articles in a manner

never done before; of blowing the contempt charge

way out of proportion to its importance; and asso-

ciating the “charge” with a cremation of the body of

a little-known old lady of means, abolished courts,

and shaken bar was to convince the public that peti-

tioner would and did find means to appropriate a

client’s assets to himself.

CONCLUSION

For the foregoing reasons, this petition for ;

writ of certiorari should be gra

-

for petitioner

Counsel

Box 749

Bonners Ferry, Idaho 83805

13

Piatt Hull

Hull, Hull & Wheeler

Attorneys at Law

P. O. Box 709

Wallace, Idaho 83873

Fred Gilbert

Hamblen, Gilbert & Brooke, P. S.

1215 Washington Mutual Building

Spokane, Washington 99201

Counsel of record for respondents.

August 2, 1977

14

Page

APPENDIX “A”

Table of Contents

Idaho Supreme Court Opinion... __ 16

Idaho District Court Judgment

I aia tmeitestin 27

Idaho District Court Findings of Fact

and Conclusions of Law _...______-____--- 28

Idaho Supreme Court Denial of

Petition for Rehearing —.--___-...____.____.. 39

Idaho Supreme Court Denial of Motion

for Attorney’s Fees and Motion

TE 40

Respondent’s Motion for ;

Summary Judgment —_.. LAL ae 41

Affidavit of District Court

Jaap Der Cogent 43

Affidavit of District Court Judge

Dar Cogswell correcting dates... 45

t 15

In the Supreme Court of the

State of Idaho

No. 11953

GLENN E. BANDELIN,

Plaintiff-Appellant, | Coeur d’Alene,

October Term,

/1976

Filed Mar. 14, 1977

R. H. Young, Clerk

Vv.

L. E. PIETSCH; SANDPOINT

NEWS-BULLETIN, INC.;

MORGAN MONROE,

Defendants-Respondents.

Appeal from the District Court of the First Judi-

cial District of the State of Idaho, Bonner County.

Hon. Roy E. Mossman, District Judge.

Appeal from district court granting of summary

judgment in libel action. Affirmed.

Peter B. Wilson, of Wilson & Walter,

Bonners Ferry, for appellant.

Piatt Hull, of Hull, Hull & Wheeler,

Wallace, and Fred W. Gilbert, of Hamblen,

Gilbert & Brooke, P. S., Spokane, Washing-

ton, for respondents.

DONALDSON, J.

This case is an action for libel and invasion of

privacy. Plaintiff-appellant Glenn Bandelin appeals

from a grant of summary judgment. Glenn E. Ban-

delin is a North Idaho attorney and is also a former

16

ee ee ee oe

office holder in the state legislature. On December

19, 1968, the probate court of Bonner County ap-

pointed him guardian of the person and estate of one

Muriel I. Talbot who had been found incompetent on

the same date. She died on January 2, 1970. Bande-

lin did not initiate proceedings for a final accounting

until March 25, 1971. At that time, the district court

concluded that Bandelin’s management of the estate

had been negligent in the extreme and ordered the

prosecuting attorney of Bonner County to initiate

contempt proceedings against him.

Over a period of several months, the Sandpoint

News-Bulletin reported the ensuing legal proceedings.

Accounts of the proceedings occurred in eleven con-

secutive editions of the Sandpoint News-Bulletin.

There were seventeen publications in toto. These

accounts gave rise to Bandelin’s allegations of libel

and invasion of privacy. He claims that the accounts

contained misstatements of fact and that they were

deliberately repetitious.

From the record it appears that misstatements

appeared in the August 19 and August 26 editions of

the Sandpoint News-Bulletin. The August 19 edition

referred to two Sandpoint attorneys “judged in con-

tempt of a district court decision and order concern-

ing their handling of the guardianship and esiate of

the late Mrs. Muriel Talbot.” At a later point in the

article they were cited by name. In the August 26

edition the same misstatement is made twice. Al-

though plaintiff was later judged in contempt by the

district court (a conviction that was overturned. by

the Idaho Supreme Court on procedural grounds),

at the time the above accounts were written his case

had not come to trial and hence he had not yet been

adjudged in contempt. The Sandpoint News-Bulletin

17

did accurately report future developments in the case

—Bandelin’s conviction, the appeal that followed and

the Supreme Court’s reversal of the lower court’s

decision, but it never made a retraction of the earlier

misstatements.

Bandelin brought a libel action along with an

invasion of privacy action against the Sandpoint

News-Bulletin, as well as its editor, L. E. Pietsch, and

the reporter responsib!e for the allegedly defama-

tory publications, Morgan Monroe. After extensive

discovery, the Sandpoint News-Bulletin moved for

summary judgment. The district court, after exam-

ining the record as well as supplementary briefs and

affidavits, granted the Sandpoint News-Bulletin’s

motion. This appeal followed.

Two issues are raised on appeal. First, were the

allegedly defamatory publications privileged under

the first amendment. Second, assuming that the pub-

lications were privileged, were there disputed issues

of material fact as to the exisience of malice that

should have been submitted to a jury. In short, was

Sandpoint News-Bulletin’s motion for summary judg-

ment providently granted.

We will address the issue of privilege first, but

before doing so, we will briefly delineate the relevant

legal principles on which this case must be resolved.

Ever since New York Times Co. vs. Sullivan, 376

U. S. 254. (1964) was decided, the Supreme Court has

been grappling with the problem of reconciling the

demands of the first amendment freedom of the press

with the law of libel and invasion of privacy. New

York Times and its progeny place a heavy burden on

a libel plaintiff. If a communication is constitution-

ally privileged under New York Times, a plaintiff can

18

—

recover only if he can prove malice on the part of the

publisher, with malice being defined as knowledge

of falsity or reckless disregard of truth. New York

Times, supra. Although reckless disregard bears a

superficial resemblance to gross negligence, the Su-

preme Court has interpreted it to mean much more.

In St. Adamant v. Thompson, 390 U. S. 727, 731

(1968), with only Justice Fortas dissenting, the Court

reversed a judgment for the plaintiff because nothing

in the record established that the defendant had a

conscious awareness of probable falsity. In addition.

the Court has replaced the “preponderance of evi-

dence” standard of proof, generally applicable in civil

cases, with the more demanding standard of “clear

and convincing” evidence. Rosenbloom v. Metrome-

dia, Inc., 403 U. S. 29, 52 (1971). These same princi-

ples have also been applied to actions for invasion of

privacy. Time, Inc. v. Hill, 385 U. S. 374 (1967).

The protection accorded the first amendment

reached a high water mark in Rosenbloom. Not only

did that decision give constitutionally privileged

communications the benefit of a more demanding

standard of proof, a plurality applied the Times privi-

lege to a private individual’s involvement in a matter

of public or general concern. Prior to Rosenbloom,

the privilege had been confined to publications con-

cerning public officials or public figures. In Gertz

v. Welch, 418 U. S. 323 (1974), the tension that ne-

cessarily exists between the need for a robust press

and the competing societal interest in preserving the

integrity of an individual’s reputation resulted in a

retrenchment of the Court’s interpretation of first

amendment rights. The battleground was the thresh-

hold issue of privilege. The majority in Gertz reject

ed the contention of the plurality in Rosenbloom that

19

publications involving matters of public and general

concern enjoyed a constitutional privilege even when

they involved private individuals. The issue was

raised again in Time, Inc. v. Firestone, 96 S. Ct. 958

(1976) at which time the Court affirmed its holding

in Gertz, stating explicitly that reports of judicial

proceedings were not privileged a priori.

Appellant Bandelin cites Gertz and Firestone

and argues on this basis that respondents’ communi-

cations were not constitutionally privileged. We can-

not agree. Although Gertz and Firestone narrowed

the area of first amendment protection in libel and

presumably in invasion of privacy actions, nothing

in either case affected prior court decisions regarding

privileged communications that involved public offi-

cials or public figures. The district court found that

the reports of the Sandpoint News-Bulletin were

privileged in that they were reports about a public

figure. We agree.

The United States Supreme Court in Gertz said

that the designation of a public figure may rest on

two alternative bases:

“In some instances an individual may

achieve such persuasive fame or notoriety

that he becomes a public figure for all pur-

poses and in all contexts. More commonly,

an individual voluntarily injects himself or is

drawn into a particular public controversy

and thereby becomes a public figure for a

limited range of issues.” 418 U. S. at 351

A review of the record reveals that Bandelin was

prominent in the local politics of Bonner County, had

heen a representative in the state legislature, was a

20

leading attorney, and was well known throughout

the county. Counsel for Bandelin argues, however,

that in recent years Bandelin’s public role has sub-

sided—that he has reverted to the “simple small-town

lawyer he was before he gained notoriety.” We con-

cede that a public figure can revert back to the “law-

ful and unexciting life lead by the great bulk of the

community.” Prosser, Law of Torts, @ 107 (1st ed.

1941.) But it is far more common that a public figure

will retain residual ¢lements of his former status even

when he returns to private life.

However, we do not affirm the district court’s

decision exclusively on the prominence that Bande-

lin enjoyed in the local community. We are sensitive

to the consequences of being a public figure and we

do not assume that a citizen’s participation in com-

munity and professionai affairs automatically ren-

ders him a public fi igure. We follow the sgyreate of

the Supreme Court in Gertz:

“It is preferable to reduce the public-

figure question to a more meaningful con-

text by looking to the nature and extent of

an individual’s participation in the particu-

lar controversy giving rise io the defamation

(or invasion of privacy).” 418 U. S. at 352.

In the present case, Bandelin as the guardian of

the estate of Murial I. Talbot was the center of the

controversy that gave rise to the Sandpoint News-

Bulletin’s publications. The Sandpoint News-

Bulletin initiated its coverage of the Talbot case when

it became aware of the trial judge’s criticism of Ban-

delin’s handling of the Talbot guardianship. Under

such circumstances, Bandelin cannot maintain thal

he is not a public figure. and was just an attorney

2)

handling the probate affairs of a client. He was

rather the court appointed guardian, a pivotal figure

in the controversy regarding the accounting of the

estate thal gave rise to the defamation and invasion

of privacy actions.

The fact that after a period of active involvement

in the political and social affairs of Bonner County,

Bandelin desired the personal anonymity of a private

citizen, does not make him a private figure for first

amendment purposes. Public figure status does not

hinge upon an individual’s preference in the matter.

In most cases, a public figure will have become such

by the active pursuit of the limelight, but the Times

privilege is not precluded because an individual does

not voluntarily pursue public acclaim. The privilege

is based upon a value judgment that debate on public

issues should be uninhibited. That judgment is appli-

cable to both the individual who becomes embroiled

in a public controversy through no effort of his own

and the individual who actively generates controver-

sy—both abdicate their anonymity.

Since the Sandpoint News-Bulletin’s coverage of

Bandelin’s role in the Talbot case was constitution-

ally privileged, in order to recover on his libel and

invasion of privacy action, Bandelin had to show that

the publications were made with malice. We come

then to the major issue which Bandelin raises on

appeal—whether there were disputed issues of fact

as to the existence of malice which should have been

submitted to a jury.

The purpose of summary judgment is to avoid

useless trials. When there are no genuine issues of

material fact and a party is entitled to judgment as a

matter of law, a trial court is justified in denying a

22

—a

a

trial on the merits. When there are issues of material

fact, however, a trial is essential. In ruling on a mo-

tion for summary judgment a trial court’s sole in-

quiry is whether such issues exist; a trial court should

not resolve any existing factual issues.

These principles are so well engrained in the law

that they require no citation. They apply to first

amendment cases as well as less august legal ques-

tions. Although courts have said that serious prob-

lems will be created for free speech and free press if

unwarranted law suits are allowed to proceed to trial

this solicitude for first amendment freedoms was not

intended to abrogate the fundamental rules govern-

ing the administration of summary judgment. When

first amendment rights are involved, courts should

carefully distinguish between what are only formal

allegations and what are substantial factual disputes.

Whether summary judgment should be granted,

however, is determined on the same basis—is there

a genuine issue of material fact? In making that de-

termination courts are required to view the evidence

in the light most favorable to the party against whom

the motion for summary judgment is made and to

draw al! inferences in his favor.

The first amendment is not without its protec-

tion in summary judgment, however. The manner

in which a court must examine the evidence in deters

mining whether there is a disputed issue of material

fact is the same as in ali other cases in which it is

claimed that a case should not go to the jury. But the

standard against which the evidence must be exam-

ined is that of New York Times. When a defendant's

communications are constitutionally privileged, a

plaintiff cannot prevail at trial unless he establishes

malice with convincing clarity. This is the standard

23

against which the court must examine the evidence

on motion for summary judgment because this is the

standard to determine materiality of disputed ques-

tions of fact. Unless there is evidence which if be-

lieved by a jury would establish malice clearly and

convincingly, a defendant is entitled to summary

judgment. Disputed issues of fact that if resolved

in favor of the plaintiff should still fall short of estab-

lishing malice with convincing clarity are not mater-

ial. Bon Air Hotel, Inc. v. Time, 426 F. 2d 858 (5th

Cir. 1974); Time Inc. v. Milaney, 406 F. 2d 565 (5th

Cir. 1969); Guam Federation of Teachers v. Ysrael,

492 F. 2d 438 (9th Cir. 1974); Cervantes v. Time, Inc.

464 F. 2d 986 (8th Cir. 1972).

—

Applying these principles to the present case, we

agree with the district court that summary judgment

should have been granted. Even viewing the evi-

dence most favorably to Bandelin and giving him the

benefit of all proper inferences, there is no evidence

that shows with convincing clarity that the Sandpoint

News-Bulletin acted with malice. The only errors

appearing in the report were two statements that

Bandelin had been judged in contempt when his case

had not yet come to trial. The Supreme Court of the

United States found that a reporter’s failure to differ-

entiate between allegations in a complaint and proven

fact is not sufficient to sustain a jury finding of ac-

tual malice. Time, Inc. v. Pape, 401 U. S. 279 (1971).

But see Time, Inc. v. Firestone, supra. Like Morgan

Monroe, the reporter in this case, the reporter in Pape

professed some familiarity with legal concepts. The

Supreme Court based its conclusion on the fact that

the alleged libel in Pape arose from a misinterpreta-

tion of an ambiguous document. The district court’s

order directing the prosecuting attorney of Bonner

24

—_-

et 3 ==.

County to initiate contempt proceedings against Ban-

delin was equally ambiguous. Malice cannot be pred-

icated exclusively on misstatements having their

genesis in an ambiguous document.

Bandelin also relies on the tone of the articles to

sustain his claim that summary judgment was im-

providently granted. The articles were evocative.

Phrases such as the “puzzling Talbot case,” “rapid-

fire developments,” “shaken Bonner County legal

community” blemish the articles. We do not applaud

the Sandpoint News-Bulletin’s journalism. It was

unjustifiably sensational. However, the tone of the

articles, even when considered with the other evi-

dence presented in the case, does not establish malice

with convincing clarity. Malice is defined for first

amendment purposes as knowledge of falsity or reck-

less disregard of truth. Its essence is a knowing state

of mind on the part of the publisher. Although it is

conceivable that the character and content of a pub-

lication could be so patently defamatory that a jury

could infer a knowing state of mind on this basis

alone, no case has so held. The argument was rejected

on its facts in New York Times v. Sullivan, supra, and

Washington Post Co. v. Keogh, 355 F. 2d 965 (D. C.

Cir. 1966). The alleged libel in the present caes is

much less serious than that in New York Times and

Washington Post. Moreover, when both cases were

decided, malice could still be proved by a mere pre-

ponderance of the evidence. We therefore decline

to deviate from th results reached in New York Times

and Washington Post.

Bandelin contends that the repetition of the

news stories together with their misstatements and

tone raise sufficient evidence of malice to justify sub-

mitting the question to a jury. The record establishes

25

beyond factual dispute that the Talbot case was a

continuing story—each of the articles was justified

by a new development in the case. Morgan Monroe

testified that standard journalism procedure is to

summarize preceding developments in a continuing

story, the assumption being that readers have not

read the prior stories. Monroe’s testimony is not

challenged by any evidence to the contrary. We also

take notice of the fact that the Sandpoint News-

Bulletin is a weekly newspaper. When a paper is not

published daily, it may be more important to repeat

what transpired previously so that readers will under-

stand the latest developments in a story.

Bandelin has not introduced any other evidence

of malice. What he has introduced even if accepted

by a jury would not establish malice under the less

demanding preponderance of evidence standard. It

falls far short of establishing malice with convincing

clarity.

Judgment affirmed. Costs to respondents.

McFADDEN, C. J.. SHEPARD and BAKES, J. J.,

and SCOGGIN, D. J., retired, concur.

ee Ae ees eter SD a gt etn Re. ey lB le

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Ooms mee freee sales

IN THE DISTRICT COURT OF THE FIRST

JUDICIAL DISTRICT OF THE STATE OF

IDAHO, IN AND FOR THE COUNTY

OF BONNER

GLENN E. BANDELIN,

Plaintiff,

wage | No. 12055

VS.

L. E. PIETSCH, SANDPOINT, JUDGMENT OF

NEWS-BULLETIN, INC.; DISMISSAL

MORGAN MONROE,

Defendants. |

This matter came on for hearing before the

Honorable Roy E. Mosman, District Judge, upon

Defendants’ Motion for Summary Judgment on De-

cember 12, 1974, and March 21, 1975, and the parties

being represented by their attorneys of record and

the Court having received evidence and the parties

having submitted briefs and oral argument, and the

Court being duly advised and having entered Find-

ings of Fact and Conclusions of Law,

NOW, THEREFORE, pursuant to said Findings

and Conclusions, Defendants’ Motion for Summary

Judgment is hereby granted and it is hereby ordered

that plaintiff's Complaint be and the same is hereby

dismissd with prejudice and it is further ordered that

defendants shall recover their costs incurred herein.

s/ROY E. MOSMAN, Judge

Presented by:

Piatt Hull,

Attorney for Defendants.

27

IN THE DISTRICT COURT OF THE FIRST

JUDICIAL DISTRICT OF THE STATE OF

IDAHO, IN AND FOR THE COUNTY

OF BONNER

GLENN E. BANDELIN,

Plaintiff, No. 12055

VS. 4 FINDINGS OF

L. E. PIETSCH: SANDPOINT / FACT AND

NEWS-BULLETIN, INC.. CONCLUSIONS

} ‘ Y N

MORGAN MONROE, OF LAW

Defendants.

This matter came on for hearing before The

Honorable Roy E. Mosman, District Judge, upon

Defendants’ Motion for Summary Judgment on De-

cember 12, 1974, and the plaintiff being represented

by his attorneys, Stephen Bistline and Peter B. Wil-

son, and defendants being represented by their attor-

neys, Fred W. Gilbert and Piatt Hull, and the Court

having received in evidence for the purpose of the

Motion for Summary Judgment affidavits submitted

in support of and in opposition to said motion, deposi-

tions of the parties, and portions of the Court files

and transcripts of proceedings in this Court in the

Matter of the Guardianship of Muriel I. Talbot, an

incompetent, No. 10961, and in the Matter of the

Estate of Muriel I. Talbot, deceased, No. 10885, and

in the Matter of Glenn E. Bandelin and Stephen Bist-

line, No. 11384, and the Court having considered said

evidence, the pleadings, the Motion for Summary

Judgment, the briefs submitted, and having heard the

28

a |

Di pitins aii ma ”

argument of counsel! and the matter having been con-

tinued to give the parties additional time to submit

further evidence and briefs; and the parties having

submitted further affidavits and briefs, and the mat-

ter having brought on again for further oral argu-

ment on March 21, 1975, and having been submitted

to the Court for decision,

NOW, THEREFORE, the Court hereby makes

the following Findings of Fact:

FINDINGS OF FACT

1.

The facts set forth herein are not disputed except

where specially noted.

2

The defendant, Morgan Monroe, was a highly

competent, experienced and trusted reporter and

editorial writer for the Sandpoint News-Bulletin, a

weekly newspaper published in Sandpoint, Idaho.

Among his many other reporting duties, Mr. Monroe

had the responsibility of covering activities in the

Court of Bonner County. During a .outine check of

court filings on August 6, 1971, he came across a

memorandum decision and order entered by The

Honorable James G. Towles, Judge of the District

Court for Bonner County, in the Matter of the Guard-

ianship of Muriel I. Talbot, Incompetent. This mem-

orandum decision and order covered matters which

were then entirely unknown to Mr. Monroe and con-

tained recitals of fact which were considered by him

to be shocking and highly newsworthy because they

concerned a prominent attorney and politician and

his malfeasance in the conduct of a public office. The

order revealed these facts:

29

A. On December 19, 1968, Muriel I. Talbot had

been found by the Probate Court to be incompetent.

On the same date, plaintiff, Glenn E. Bandelin, was

appointed guardian of her person and estate. The

Court found that Mr. Bandelin had failed to carry out

many of the duties required of a guardian and had

done a number of things entirely without authority

from the Court. He found that the guardian fad sold

assets of the estate without making return of sale or

securing confirmation. He had sold other assets of

the estate without any proceedings to secure Court ~

approval or authority or confirmation. The guardian

failed to file an inventory of the assets of the estate

or cause the same to be appraised until after the same

was due and after a direct order to do so from the

Court. The ward died and thereafter the guardian

failed to file a proper final account. The guardian

paid himself fees without authorization from the

Court. The guardian loaned assets of the estate to a

friend without proper authorization from the Court.

Many other deficiencies in the handling of the guard-

ianship were specifically noted.

B. The Court went on to order the guardian

either to deliver all the assets of the guardianship to

the Clerk of the Court or to post a bond in the amount

of $100,000.00 within five days. He also ordered the

guardian to render a full and final accounting within

ten days, together with an inventory and appraisal.

Finally he ordered the Prosecuting Attorney of Bon-

ner County to initiate contempt proceedings against

Glenn E. Bandelin, the guardian.

3.

The memorandum decision and order of Judge

Towles was followed by the filing of an affidavit of

30

the Prosecuting Attorney, Everett D. Hofmeister,

dated August 2, 1971, stating the following:

“That as shows of record in the memor-

andum decision, hereinbefore referred to,

the said Glenn E. Bandelin and Stephen

Bistline did act and omit to act with respect

to matters pending before the Court and did

willfully neglect and violate their duties as

attorneys, and the said Glenn E. Bandelin

did willfully neglect and violate his duties as

guardian of an estate, the details of which

are more fully set forth in the aforemention-

ed proceedings referred to herein.

“That Glenn E. Bandelin and Stephen

Bistline are licensed and practicing attorneys

of the State of Idaho and did jointly and, or,

severally interfere with and obstruct the pur-

poses of the proceedings of the Court which

constitutes contempt of the authority of the

Court as defined in Idaho Code 7-601.”

4,

Based upon the affidavit of Prosecuting Attor-

ney Hofmeister, The Honorable Watt E. Prather,

Judge of the District Court of Bonner County, enter-

ed an order to show cause dated August 4, 1971, as

follows:

“Upon the reading and filing of the af-

fidavit of the Prosecuting Attorney of Bon-

ner County herein and upon reading of the

memorandum decision and order of the

Honorable James G. Towles in Bonner

County Case No. 10961 dated July 27, 1971,

and the review of Bonner County Case No.

10961 and Bonner County Case No. 10885,

31

from which it appears that the said Glenn

E. Bandelin and Stephen Bistline did act and

omit to act with respect to proceedings in

said cases in contempt of the authority of the

ee ,

Judge Prather’s order then went on as follows:

“It is hereby ordered that you, Glenn

E. Bandelin and Stephen Bistline, appear be-

fore the above entitled Court - - - - to show

cause why you should not be adjudged guiltv

of and punished for contempt of Court by

reason of the evidence shown in Bonner

County Case No. 10961.”

5.

Based upon what he found in the Court files and

the foregoing orders, Mr. Monroe wrote a story for

the Sandpoint News-Bulletin which was published in

the issue of August 12, 1971, the lead sentence of

which starts out:

“Two Sandpoint attorneys have been

ordered to show cause why are not in con-

tempt of the authority of the District Court

The story then quoted directly from the order of

Judge Prather as follows:

“The order states that Bandelin and

Bistline ‘did act and omit to act with respect

to proceedings in said cases in conlempt of

the authority of the Court.’ ”

The story then went on to give many details con-

cerning the guardianship proceedings and the order

of Judge Towles.

32

6.

On August 19, 1971, a further story was pub-

lished reporting that George Antonson had been ar-

rested and charged with embezzling assets of the

estate which had been delivered to him. The story

also reviewed additional provisions of the orders of

Judge Tow'es and Judge Prather and stated:

“The case involves, among others, two

Sandpoint attorneys judged in contempt of

a District Court decision and order concern-

ing their handling of the guardianship.”

The next sentence in the story states:

“Both attorneys have been ordered to

appear and show cause before District Court

Judge Watt E. Prather in Sandpoint, Sep-

tember 21, at 9:30 a.m.”

This story was followed by another one August

26, 1971, reporting a second charge of embezzlement

against George Antonson and summarizing the in-

formation which had been previously published.

7.

Thereafter the newspaper reported to its readers

various events as they transpired. Attorneys for

Bandelin attempted to have Judge Towles revoke his

order of July 27th and to declare himself incompe-

tent to hear the case by virtue of personal prejudice.

The denial of this motion was appealed to the Su-

preme Court of the State of Idaho and in the mean-

time the hearing on the motion to show cause was

continued to a date in September, when it was to be

heard before an outside Judge, Judge Quinlan of

Lewiston, Idaho. The hearing was again continued

33

to October 15th and after a full hearing before Judge

Quinlan, Judge Quinlan found Bandelin guilty of

contempt as charged. This order was also appealed

to the Supreme Court of the State of Idaho and event-

ually was set aside by that Court on the ground that

the District Court lacked jurisdiction because the

charges against Mr. Bandelin were not sufficiently

specific. All of these proceedings were thoroughly

reported in the Sandpoint News-Bulletin over a period

of many months.

8.

Plaintiff contends that these stories contained

certain statements which were untrue and were de-

famatory to plaintiff and constituted an unlawful

invasion of the plaintiff’s right to privacy. Defend-

ants contend that any statements published which

were not true were published without knowledge that

they were untrue and without any-reckless disregard

of the truth.

9.

The only untrue statement contained in the pub-

lications which has been pointed out to the Court and

which the Court finds could be considered to be de-

famatory is the statement set forth in Finding No. 6

above contained in the newspaper publications of

August 19 and August 26, 1971, to the effect that

plaintiff had heen judged in contempt of a District

Court decision. It is admitted that this statement was

not true in that plaintiff had not been adjudged in

contempt in the legal sense of the word, but had only

been ordered to be charged with contempt.

10.

The Court finds that the language of the mem-

orandum decision of July 27, 1971, gave ample reason

34

for anyone reading it to conclude that Judge Towles

had found that acts constituting contempt had been

committed by Mr. Bandelin. This was the conclusion

reached by Mr. Monroe and it was shared by Mr.

Pietsch and published for two successive issues in the

newspaper. In the very same stories it was also

pointed out that Bandelin was being ordered to appear

and show cause why he should not be punished for

contempt, thus making it clear that he had not yet

been convicted. The Court further finds that there

was undersiandable confusion in the mind of Mr.

Monroe and others as to the exact meaning of Judge

Towles’ decision. Mr. Monroe made extensive efforts

to resolve this confusion by questioning others, in-

cluding attorneys in the area who were familiar with

the case. There is some dispute as to what was said

in these conversations, but no evidence has been pre-

sented to show that Morgan Monroe in fact knew or

should have known that Bandelin had not been

“found in contempt” when the above stories were

published.

11.

In another hearing before Judge Towles on

August 26, 1971, Attorney Nixon, representing Steph-

en Bistline, who was also a party to the contempt

proceedings, clearly indicated to Judge Towles that

he was of the opinion that Judge Towles had found

both Bistline and Bandelin in contempt and the Court

advised him, “I haven’t found anybody in contempt.”

Mr. Monroe was present at this hearing and in the

next issue of the newspaper reported to the readers

just what Judge Towles had said and thereafter the

newspaper never again repeated the statement that

plaintiff had been found in contempt.

35

12.

The defendant, L. E. Pietsch, as owner and editor

of the defendant newspaper, relied entirely upon

Morgan Monroe to secure the information and write

the stories published in the newspaper concerning

this matter. He cautioned Mr. Monroe to handle the

matter carefully and objectively and was aware of the

efforts made by Mr. Monroe to learn the truth. The

Court further finds that Mr. Pietsch did not learn that

Judge Towles had not in fact found Bandelin in con-

tempt until after the hearing before Judge Towles

on August 26, after which Mr. Monroe reported to

him what Judge Towles had said in open court on that

occasion, and the next issue of the newspaper pub-

lished the corrected facts.

13.

There is no evidence to establish that the defend-

ants or any of them published any false statements

concerning the plaintiff with knowledge that they

were false or in reckless disregard of the truth.

14.

The newspaper articles were concerned solely

with Mr. Bandelin’s conduct as court appointed

guardian of the estate of an incompetent person and

with his having been charged with contempt for his

improper handling of the guardianship proceedings

and his trial upon those contempt charges,

15.

Plaintiff has been a resident of Bonner County

all of his life and is well known throughout the Coun-

ty. He has been prominent in local politics and served

this District in the State Legislature for a number of

36

i

years. As a practicing attorney for many years he

has represented many residents of the County or

members of their families.

16.

The matters which were published in the news-

paper concerning the plaintiff were interesting and

newsworthy and, since they dealt with the activities

of a prominent attorney in the handling of a guard-

ianship to which he had been appointed by the Court

and the criticism of that handling by a District Judge

and the resulting charges of contempt, they were

matters of public concern.

17.

There is no evidence that defendants published

any false information concerning plaintiff’s private

life, private activities or private capacity.

From the foregoing Findings of Fact, the Court

makes the following Conclusions of Law:

CONCLUSIONS OF LAW

1.

The newspaper publications complained of con-

cerned a Court proceeding, a public official, a public

figure, and a matter of public concern and, therefore,

were entitled to the protection of the First Amend-

ment of the Constitution of the Unied States.

2.

Plaintiff has produced no evidence that any false

statement was published with knowledge of its falsity

or with reckless disregard of the truth.

37

3.

Plaintiff has produced no evidence that defend-

ants published any false information concerning the

plaintiff which constituted an unwarranted invasion

of his right to privacy.

4.

There is no genuine issue as to any material fact

and defendants are entitled to judgment as a matter

of law.

— IN OPEN COURT this 15 day of April,

s/ROY E. MOSMAN, Judge.

Presented by:

Piatt Hull,

Attorney for Defendants.

SUPREME COURT — STATE OF IDAHO

Boise, Idaho

Peter J. Boyd

Elam, Burke, Jeppesen, Evans & Boyd

Attorneys at Law

Boise;

Peter B. Wilson

Wilson & Walter

Attorneys at Law

Bonners Ferry; SUPREME COURT No. 11953

Piatt Hull May 13, 1977

Hull & Hull

Attorneys at Law

Wallace;

Fred W. Gilbert

Hamblen, Gilbert & Brooke

Attorneys at Law

Spokane

L. E. PIETSCH; SANDPOINT NEWS-

BULLETIN, Inc.; MORGAN MONROE,

Appellant,

v.

GLENN E. BANDELIN,

. Respondents.

GENTLEMEN:

In the above entitled cause the Court has today

denied Appellant’s Petition for Rehearing. The

Respondent’s Motion for Attorney Fees and Appel-

lant’s Motion Requesting Permission to Submit

Interrogatories, etc., are still under consideration.

R. H. YOUNG,

CLERK OF THE SUPREME COURT

STATE OF IDAHO

39

SUPREME COURT — STATE OF IDAHO

Boise, Idaho

Peter J. Boyd

Elam, Burke, Jeppesen, Evans & Boyd

Attorneys at Law

Boise;

Peter B. Wilson

Wilson & Walter

Attorneys at Law

Bonners Ferry:

Piatt Hull

Hull & Hull

Attorneys at Law

Wallace;

Fred W. Gilbert

Hamblen, Gilbert & Brooke

Attorneys at Law

Spokane

Supreme Court No. 11953

May 20, 1977

GLENN E. BANDELIN,

Appellant,

v.

L, E. PIETSCH; SANDPOINT NEWS-

BULLETIN, Inc.; MORGAN MONROE,

Respondents.

GENTLEMEN

In the above entitled cause the Court has today

denied Respondent’s Motion for Attorney Fees and

denied Appellant’s Motion requesting permission to

submit interrogatories, Notice to produce and re-

quest for admission to Respondents together with

Request for permission to take deposition.

R. H. YOUNG

CLERK OF THE SUPREME COURT

STATE OF IDAHO

40

”™

r

3

IN THE DISTRICT COURT OF THE FIRST

JUDICIAL DISTRICT OF THE STATE

OF IDAHO, IN AND FOR THE

COUNTY OF BONNER

GLENN E. BANDELIN,

Plaintiff, No. 12055

VS. ’

L. E. PIETSCH, SANDPOINT

NEWS-BULLETIN, INC.:

MORGAN MONROE,

Defendants.

MOTION FOR

SUMMARY

JUDGMENT

Come now the defendants above named, through

their undersigned attorneys, and move for a sum-

mary judgment in their favor, pursuant tg Rule 56

of the Rules of Civil Procedure, with respect to each

issue of liability asserted in Plaintiff's Amended

Complaint herein.

This motion is based on the pleadings filed

herein and on the attached affidavits of Fred W.

Gilbert and Morgan Monroe and Laurin Pietsch on

file herein. Said pleadings, affidavits and deposi-

tions show that there is no genuine issue as to any

material fact and that defendants are entitled to judg-

ment in their favor as a matter of law, with respect

to each question of liability. Said pleadings, affi-

davits and depositions further show that the matters

published by defendanis concerned the guardianship

proceedings in the estate of Muriel I. Talbot, an in-

competent, and plaintiff's acts as official guardian,

which proceedings and acts were of an official public

nature and of public concern and, therefore, said

41

publications were privileged under the First and

Fourteenth Amendments to the United States Con-

stitution.

DATED this _.. _ day of May, 1974.

HAMBLEN, GILBERT & BROOKE, P. S.

By s/ FRED W. GILBERT

Fred W. Gilbert

1215 Washington Mutual Building

Spokane, Washington 99201

HULL, HULL &WHEELER

By s/ PIATT HULL

Piatt Hull e

P. O. Box 709

Wallace, Idaho 83873

Attorneys for Defendants.

IN THE SUPREME COURT OF THE

STATE OF IDAHO

GLENN E. BANDELIN,

Plaintiff and Appellant,

vs. No. 11953

L. E. PIETSCH; SANDPOINT ,

NEWS-BULLETIN, INC.: AFFIDAVIT

MORGAN MONROE,

Defendants and Respondents.

STATE OF at

County of Boundary/””

4

DAR COGSWELL, being first duly sworn

on oath, deposes and says:

a

That affiant is the District Judge of the First

Judicial District of the State of Idaho; that he has

resident chambers in Sandpoint, Idaho; and that affi-

ant is one and the same a as the affiant, Dar

Cogswell in that affidavit inthis cause dated Decem-

ber 9, 1974; )

II.

That in said affidavit under paragraphs A

through G, the month shown is “July,” and that this

43

is a typographical error, and the month should read

“August.”

s/ DAR COGSWELL

SUBSCRIBED AND SWORN TO BEFORE ME

THIS 13th day of April, 1977.

s/ DOUGLAS H. DAVIS

Notary Public for Idaho

Residing at Bonners Ferry

Com. Exp.:.

I hereby certify that a true and

<orrect copy of the foregoing was

mailed, regular mail, postage prepaid,

to:

Piatt Hull, Esq.

P. O. Box 709

Wallace, Idaho 83873

Fred W. Gilbert, Esq.

1215 Washington Mutual Bldg.

Spokane, Washington, 99201

this 11th day of April, 1977.

s/BLANCHE STUDER

L. E. PIETSCH, et al.,

IN THE DISTRICT COURT OF THE FIRST

JUDICIAL DISTRICT OF THE STATE OF

IDAHO, IN AND FOR THE COUNTY

OF BONNER

GLENN E. BANDELIN, Case No. 12055

a Plainult, (AFFIDAVIT OF

| DAR

Defendants. COGSWELL

STATE OF IDAHO \

County of Bonner

I, Dar Cogswell, being first duly sworn on oath,

deposes and says: -

I have read an excerpt of the transcribed oral

deposition of Morgan Monroe that has been furnished

to me by Mr. Bistline.

As I understand Mr. Morgan’s deposition, the first

article that appeared in the Sandpoint News-Bulletin

concerning the Talbot Estate was published on Thurs-

day, August 12, 1971; that prior to the second publi-

cation on August 19, 1971, Mr. Monroe alleges that he

talked to me extensively concerning the Talbot case

and that I used the phrase which he quoted in the sec-

ond article as follows:

“This is a puzzling case that has shaken

the legal community in this area.”

I have no recollection of making such a comment

to Mr. Monroe. I have never represented myself as

speaking for the “legal community.” I had no indi-

cation of how the legal community felt concerning

the Talbot Estate except that I know that the attorneys

who represented Mr. Bandelin felt that no contempt

charge had been made against him.

45

My recollection is further supported by my court

minutes and travel expense vouchers which show that

I could not have talked to Mr. Monroe between the first

publication of the News Bulletin on August 12, 1971,

and the second publication on August 19, 1971, for the

reason that I was not available in my office in Sand-

point, Idaho, but that I was out of town performing

court business as follows:

A. Thursday, July 12, 1971 - Coeur d’Alene,

Idaho Judicial Conference - 8:00 A. M.

to 5:00 P. M.

B. Friday, July 13, 1971 - Coeur d’Alene,

Idaho Judicial Conference - 8:00 A. M.

to 5:00 P. M.

C. Saturday, July 14, 1971 - Coeur d’Alene,

Idaho Judicial Conference - 8:00 A. M.

to 5:00 P. M.

D. Sunday, July 15, 1971 - At home in

Sandpoint. I have never had a conver-

sation with Mr. Monroe at my home

concerning legal matters.

E. Monday, July 16, 1971 - Coeur d’Alene,

Idaho Judicial Conference - 8:00 A. M.

to 5:00 P. M.

F. Tuesday, July 17, 1971 - Wallace, Idaho

Judicial Conference - 8:00 A. M. to

5:00 P. M.

G. Wednesday, July 18, 1971 - Bonners

Ferry, Idaho Law Day - 8:30 A. M. to

5:00 P. M.

DATED this 9th day of December, 1974.

s/ DAR COGSWELL

Dar Cogswell

Sworn to subscribed s/ DOUGLAS H. DAVIS

before me this 9th day Douglas H. Davis, Notary

of December, 1974. Public in and for the

State of Idaho.

46