# Petition — Bandelin v. Pietsch

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 891

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2348%3A1. Public record. Not legal advice.