Petition — Cape Publications, Inc. v. Adams

Supreme Court brief1977

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a Suoreme Court, U. 8.

FILED

SEP 15 1977

" CLERK

| | IN THE

Fe Supreme Court of the United States

Ocroner TERM, 1977

I eoaecliliian

ii Care Pustiications, Inc. and

i Buppy Baker and Duxe Newcomer, Petitioners

ty v.

: :

: DonaLp F, Apams, Respondent

S. Linpsry HOo.wanp, Jr.

Crorron, HoLuanp, STARLING,

Harris & Severs

65 E. Nasa Boulevard

P. 0. Box 459

Melbourne, Florida 32901

eS ee A

‘Panss or Brnon 8. Avams Pantine, Inc., Wasmineton, D.C.

- :

= tee

ae ee

Page

CCU EOD Abs ci pidcncccbsascovcccsvctpecesions 1

PU EES sce dna wtb hbbedévecdaccedescpes cae 2

QUESTIONS PRESENTED ...........:ccccceceeeeeeeces 2

ConstiruTionaL Provisions INVOLVED ...........+.+: 2

STATEMENT OF THE CASE ... 1... 00s ececeeeeeeeeees 3

SumMMARY OF ARGUMENT ........ 0.000 cee seeueeeees 10

ARGUMENT ..........5. ol Oc Renee becadee ne tecectere 14

The Evidence Adduced at Trial Below Does Not

Support the Judgment Against Petitioners Un-

der the Actual Malice Test of New York Times

Wi EN ip Cle ¢ wae ae ae 08 ¥%.cie 0'e Jo py

The Award to Plaintiff of $214,000, Including

$100,000 in Punitive s, Impairs the Exer-

cise of First Amendment Freedoms to the Extent

of Imposing Self-Censorship, Is Unsupported by

the Evidence, and Does Not Properly Promote a

Compelling UN OROIMEE ., cackauacesss clave

TABLE OF CITATIONS —

Cases:

mlb meats Pub. Co. v. Jaffe, 366 F.2d 649 (D.C.

Balding Sharon Herald Co., 391 F.2d 703 (3rd Cir.,

Bates v. Little Rock, 361 U.S. 516 (1960) ...........

Blackburn v. Alabama, 361 U.S. 199 (1960) .........

Bobenbousen v. Cassat, 344 So.2d (Fla., 1977)...

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

Pan: bce éis GK: ek <aarb} ey eae at

ii Table of Citations Continued

' Page

Buchanon v. Associated Press, 398 F.Sopp. 1196

(D.D.C., 1975) .....--ecseeesnenes fore Leqeees

Buckley v. Littell, 539 F.2d 882 (2nd Cir., 197¢) ....

Cantrell v. Forest City Pub. Co., 419 U.S. 245 (1974)

Cape Publications, Inc. v. Adams, 336 So.2d 1197

(TOTE) voccccwascccccsccctcesocsses 28, Ap

Cardillo v. Doubleday @ Co., 366 F.Supp. 92 (S.D.

.2d 638 (2nd Cir., 1975).

Cerrito v. Time, Inc., 302 vont 1071 (N.D.Cal.,

ED as tains bp

Coates v. Cincinnati, 402 U.S. 611 (1971) .......-...

ndix A

Davis v. Hearst, 160 Cal. 143 (1911) ........0-eeees 40

Dombrowski v. Pfister, 380 U.S, 470 (1965) ......... 30

Edwards v. National Audubon Society, Inc., —— F.2d

——— (Qnd Cir., 1977) .....ccececessscscccecers 28

Edwards v. South Carolina, 372 U.S. 229 (1963) .... 37

Farrar v. Tribune Pub. Co., 57 Wash. , P.2d

TOR (IGGL) onc vacccccccrscccveccccconcsoucce 36, 40

Fram v. Yellow Cab Co., 380 F.Supp. 1314 (W.D.Pa., a

1OT4) ce cccccvccccccvccccevecsesesesecesreees

Garrison v. Louisiana, 379 U.S. 64 ices BATES, $i 10, 14

Gertz v. Robert Welch, Inc., 418 U.

323 (1974). ..10, 13,

15, 26,

36, 38, 39

Goldwater v. Gineburg, 414 F.2d 324 (2nd ais 1969) 23

Greenbelt Cooperative Publishing Ass’n v. Bresler,

SOB UB. 6 (1GTO) so. ccc ce ccc cece cceecescsces

Guam Federation of Teachers, Local 1581, A.F.T. v.

Ysrael, 492 F.2d 438 (9th Cir., 1974) .........+5.

Konigsberg v. Time, Inc., 312 F.Supp. 848 (S.D.N.Y.,

1970

Lake Shore & Michigan S. Ry. v. Prentice, 147 U.S. fi

OO ARNEL 'bedc cas doedsancs sanasemensaren viume |

Maheu v. Hughes Tool Co,, 384 F.Supp. 166 (C.D.Cal.,

MOE fcc caad iin $45¢5> RRS iy ubhaak yb eine 33, 36

McFarland v. Hearst Corporation, 332 F.Supp. 746

CTA DOVE oe. cikic vat dddienwimast tarde educe sec

McLaughlin v. Florida, 379 U.S. 184 (1964) .........

Meeropol vy. Nizer, 381 F. Supe: 29 (S.D.N.Y., 1974),

aff’d., 505 F.2d 232 (2nd Cir. 1974) ...........

Mills v. Alabama, 384 U.S. 214 (1966) ..............

Table of Citations Continued jii

Page

Nebraska Press Ass'n. v. Stuart, —— U.S. ——, 49

SAME CEU 3d050 nicer cp sccbacvesiccent 37

a 960)" Times v. Connor, 365 F.2d 567 (5th Cir.,

Reynolds v. Pepler, 128 F Supp, 34 (SDNY, 1984) 39

ere ee 29

SD ROMt aoe den tell” Coch edad ne ecimececei 30

St. Amant v. Thompson, 390 U.S. 727 (1968)...... 10, 14

Stone v. Essex County Newspapers, Inc., 330 N.E.

& "SREP nga s arn 15, 26, 36

Taskett v. King Broadcasting Co., 86 Wash. 2d 439,

me oF §&§ %, GRAPES Sere 36, 39

Time Inc. v. McLaney, 406 F.2d 565 (5th Cir., 1969).. 27

ares it .. pre, § 401 eae P-GNUED s cokine eneec 24, 32

ite e oratories v. C.B.S., ;

er oe ta whe see... oat ia 31

Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th

EE EE ee EA NEE He 15, 26

Walker v. Colorado Springs Sun, Inc., 538 P.2d 458

Colo.), cert. denied, 96 S.Ct. 469 (1975) ....... 41

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C.

MMT C1 il cit>ccesacaehis a bneches 30

Williams v. City of New York, 508 F.2d 356 (4th Cir.,

VM Nad nidtids « Gawh b Oho areedecdniaces 12, 41, 42

Orner AvrHorirties:

‘‘Annotation: Excessiveness or Inadequacy of Dam-

ages for Defamation’’, 35 ALR2d218 ........... 40

1 Hanson, Libel and Related Torts (1969) .......... 40

McBaine, ‘‘Burden of Proof: De f ief,’’

Cal.L.Rev. 242 (1944) ......., elt en tue

iv Table of Citations Continued

Page

te. the J Upon Presumptions

oe pinden of Proof’’, 4 arvard L.Rev. 59 si

(1983)... cccecweswenseceeereereseseneeeeesers

‘*Punitive In Defamation Actions Brought

Damages -

lie Figures Chill First Amendment ts

hires Unconstitutional Unless “> —

ecessarily Promoting Com ,

. Ve Rev. 487 (1975)

est’’, 28 Vanderbilt L. Rev. 887 (1975) .......-. 38

‘* Puniti in Defamation Litigation: A

— tog oe Danger to Freedom of

Speech’’, 64 Yale L. J. 610 (1955) .....-.-.-+-. 36

Restatement (Second) of Torts, Explanatory Notes,

§ 621 (Tentative Nov. 20, 1974) ......... 36

IN THE

Supreme Court of the United States

OcToBeR TERM, 1977

No.

Care PuB.ications, Inc. and

Buppy Baker and Duxe Newcome, Petitioners

DonaLp F. Apams, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

FOURTH DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

Petitioners respectfully pray that a writ of certio-

rari issue to review the judgment of the Fourth Dis-

trict Court of Appeal of the State of Florida entered

on August 27, 1976.

The Circuit Court of Brevard County, Florida, rend-

ered no opinion. The opinion of the Florida Fourth

District Court of Appeal, reported at 336 So.2d 1197

(1976), is set forth in Appendix A.

The opinion of the Florida Fourth District Court

of Appeal was entered on August 27, 1976. Petitioners’

petition for rehearing by the Fourth District Court of

Appeal was denied on October 1, 1976. The Supreme

Court of Florida denied review of said decision of the

Florida Fourth District Court of Appeal on June 24,

1977. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(3).

1. Whether, under the facts of this case, the publica-

tion by a newspaper of corroborated allegations con-

stitutes actual malice when some, but not all, of the

newspaper’s sources deny at trial the published alle-

gations.

2. Whether, in a libel action brought by a public offi-

cial, the trial judge, prior to submitting the case to the

jury, must make a preliminary finding of actual malice

on a pending motion for directed verdict.

3. Whether the First and Fourteenth Amendments —

permit the award of punitive damages in a libel action

brought by a public official.

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States Con-

stitution provides, in part:

‘‘Congress shall make no law . . . abridging the

freedom of speech, or of the press... .”’

The Fourteenth Amendment to the United States

Constitution provides:

3 ‘

“‘No State shall make or enforce an = hich

shall abridge the privileges or emeaiiion ot citi-

zens of the United States; nor shall any State de-

prive any person of life, liberty, or property, with-

out due process of law; nor deny to any person

— its jurisdiction the equal protection of the

STATEMENT OF THE CASE

Duke Newcome, an experienced newspaper reporter,

was Vero Beach bureau chief of a Brevard County

newspaper known as TODAY, for a number of years.

He was well trained in investigative writing and was a

reporter in a Pulitizer prize-winning newspaper in-

vestigation at Panama City. Bernard St. Pierre, a

Vero Beach builder, Sheriff Detective J oseph Sardella,

a deputy sheriff of Indian River County, and New-

come were friends. The TODAY bureau was in a small

building in Vero Beach, together with the law office of

Attorney Robert Stone, now State Attorney of the

Nineteenth Circuit of Florida.

Plaintiff Donald Adams was and is the Building Of-

ficial of Vero Beach, County Seat of Indian River

County, and in March, 1972, he issued stop work orders

suspending construction by St. Pierre of a house on

Dahlia Lane in Vero Beach. Questions were raised by

St. Pierre as to the propriety of Adams’ rulings, and

the matter took on a newsworthy character, whereupon

Neweome proceeded to publish stories and photo-

graphs about the Adams-St. Pierre Dahlia Lane con-

troversy. Misdemeanor charges were filed by Adams

against St. Pierre, alleging building code violations in

construction of the Dahlia Lane property. St. Pierre

engaged Stone as his attorney, and St. Pierre pleaded

not guilty to these charges. In attempting to settle this

controversy, complications arose and Adams demanded,

as a condition to continuing construction, that St.

Pierre plead guilty to at least one of the charges against

him. At this point, the matter was brought to the at-

tention of Deputy Sardella who, seeing grounds for a

possible charge of extortion against Adams, on April

7, 1972, taped telephone conversations with Adams,

wherein Adams restated his demand for the guilty

plea.

St. Pierre refused to plead guilty and on April 11

filed a mandamus suit to compel Adams to permit St.

Pierre to continue building the house on Dahlia Lane.

On May 30, 1972, the misdemeanor charges were tried

and a jury found St. Pierre not guilty of all charges.

A few days later, on June 8, in the circuit court of In-

dian River County, the mandamus case was tried, the

tapes were introduced into evidence, and the circuit

court announced its decision to issue a writ of man

damus requiring Adams to permit resumption of con-

struction of the house on Dahlia Lane. News of these

events were published in TODAY.

During this same period, after the news articles and

photographs about St. Pierre and the Dahlia Lane

house were published beginning in March, 1972, various

sympathetic contractors and subcontractors in the Vero

Beach area began to call St. Pierre and related to him

instances of unusual difficulties they also had had, and

were having, with Adams. St. Pierre reported these

ealls to Sardella and Newcome, and Sardella began a

full investigation of Adams for the purpose of deter-

mining whether he had committed any crimes. He

visited contractors and subcontractors, both alone and

together with St. Pierre.

Newcome immediately began investigating the mat-

ter on his own, from the viewpoint of uncovering a

possible news story. He acquired Sardella’s informa-

tion, either directly or through St. Pierre. A great

many instances of apparent favoritism, unfairness and

arbitrariness in Adams’ performance of his duties as

Building Official came to light. One of these items,

learned first by Sardella and St. Pierre, and later by

Newcome from one Donald Wilcox, concerned difficul-

ties Wilcox was having with Adams in the construction

of Village Spires, a large condominium in Vero Beach.

Adams had disapproved approximately $30,000.00

worth of doors which he had previously approved in

the architect’s plans. These doors had already been

purchased, prepared and warehoused by Wilcox’s con-

struction company. Adams’ stated reason for rejection

of the doors was based on the fire-rated quality of the

doors.

Wilcox was project superintendent for the corpora-

tion which was building the Village Spires, and his

foreman, or job supervisor, was one Arthur Bernard.

In discussing with Wilcox Adams’ rejection of the

doors, Bernard reported that Adams had indicated to

him that payment of $1,000.00 to Adams would clear

the matter up. St. Pierre, upon learning that Wilcox

might know something concerning misconduct on

Adams’ part, arranged a meeting with Sardella and

Wilcox. At that meeting, Wileox informed them of

Bernard’s report that Adams had solicited a $1,000.00

payment. He also stated that Adams had purchased

some discarded mirrors from Wilcox’s company, and,

having paid for the mirrors by personal check, he re-

turned the next day seeking a refund of the purchase

price in cash, intending to keep the mirrors. This in-

formation was then reported to Newcome by Sardella

or St. Pierre.

Subsequently, Newcome met with Wilcox, who con-

firmed Bernard’s reports as to the $1,000.00 solicita-

tion and the mirrors incident. At about the same time,

Sardella and Newcome learned that Robert DiBassic,

a local subcontractor, had also called St. Pierre and

might have additional information. Sardella and New-

come then met with DiBassie, who expressed his dis-

gust with the Building Department of Vero Beach,

using strong language to the effect that it was a ‘‘rotten

G. D. business’, and insinuating impropriety on

Adams’ part. '

Roland Miller was mayor of a local beach commun-

ity, Indian River Shores, and in a prior conversation

with Sardella and in a later conversation with New-

come, discussed attempts by Adams to get extra pay

for extra work required in that small community, and

characterized these attempts as ‘‘shakedown”’ and

‘‘nayola”’. He also mentioned this to others.

During the months of April and May, 1972, Newcome ©

interviewed several other contractors and subcontrac-

tors concerning their dealings with the Vero Beach

Building Department, and prepared a number of

stories based on those interviews. He also prepared

articles concerning the Wilcox, DiBassie and Miller

allegations.

These articles were all reviewed by the editorial staff

of TODAY and by counsel, and were rewritten and in

some areas were reinvestigated. Newcome returned to

interview Arthur Bernard, who, in a very short state-

ment, denied reporting to Wilcox any attempted bribe.

Sardella and St. Pierre, however, assured Newcome

that the Wilcox statements had been made.

All of these matters were reported to editorial staff,

and passed on by counsel, and on June 11, 1972, the

articles in revised form were published, including brief

statements of denial by Adams and Bernard. S

pendix C. bd

Following publication, Wileox, DiBassie and Miller

denied the statements attributed to them by the ar-

ticles. Plaintiff then filed this libel suit based on the

Wilcox, DiBassie, and Miller allegations of improprie-

ties on Adams’ part.

The complaint for libel was filed August 3, 1972 by”

. . Mi

Adams against Gannett Florida Corporation, New-

come, and Buddy Baker, managing editor of TODAY.

Subsequently, the name of the corporation was changed

from Gannett Florida Corporation to Cape Publica-

tions, Inc.

The defendants, by counsel, filed a motion to dismiss

August 30, 1972. This was followed by numerous dis-

covery proceedings, including depositions, interroga-

tories, and motions to produce.

On February 15, 1973, plaintiff filed his amended

complaint, adding as defendants Joseph Sardella, Ber-

nard C. St. Pierre and Robert E. Stone, in an addi-

tional count, Count IT, alleging conspiracy to libel by

printing the same publications alleged in the original

complaint, which became Count I. Defendants there-

upon filed motions to dismiss the amended complaint

and on April 26, 1973, after hearing, the court entered

its order denying all motions to dismiss. All the defend-

ants filed answers containing affirmative defenses to

which the plaintiff replied.

On July 12, 1973 after fifteen depositions had been

taken, the defendants Gannet Florida Corporation,

Buddy Baker and Duke Newcome filed their motion

for summary judgment, and on August 27, 1973, after

hearing, said motion was denied, the trial judge stating:

‘¢ | that there may be an inference drawable from

the testimony heretofore deposed that would estab-

lish a genuine issue of material facts.”

Pre-trial was had and jury trial began September 3,

1974 and continued for six days, during which some

twenty-five witnesses testified.

Several witnesses testified to an unyielding, unfair

and inconsistent application of building rules by

Adams, frequently sprinkled with favoritism towards

some contractors, and the singling out of others for

harsh treatment. Bernard, Wilcox, and DiBassie and

Miller, however, denied having made their reported

statements critical of Adams. Sardella, St. Pierre and

Newcome adhered to their original statements.

Trial testimony as to damages showed that the plain-

tiff continued in his job and continued socializing with

people, playing golf and the like. Previous personal

events had caused him to curtail his church and lodge

activities long before the publication of the articles in

question.

Plaintiff voluntarily dismissed defendant Stone at

the end of plaintiff’s case. Although there was funda-

mental identity in the positions of Sardella, St. Pierre:

and Newcome, the court directed a verdict for all de-

fendants on the conspiracy count of the amended com-

plaint, but refused to direct a verdict for Cape Publi-

cations, Baker and Newcome on the libel count. The

court then denied motions of the remaining defendants

as to punitive damages and their motions for directed

verdict under the New York Times v. Sullivan stand-

ard for libeling public officials. These motions were

renewed at the close of all the evidence, and the court

refused to rule and simply took the motions under

advisement, without comment.

After some controversy over instructions, the jury

retired to deliberate. The jury returned a verdict of .

$114,000.00 in compensatory damages against all re-

maining defendants, and $100,000.00 in punitive dam-

ages against Cape Publications, Inc. alone. Final judg-

—_ for these amounts was entered September 13,

On September 19, 1974, these defendants filed a mo-

tion to vacate the verdict, to enter judgment in accord-

ance with their motion for directed verdict, and in the

alternative for judgment notwithstanding verdict, and

to vacate the verdict as to punitive damages and in the

alternative for a new trial. On November 15, 1974, the

trial judge denied said motions.

Appeal was taken to the District Court of Appeal,

Fourth District of Florida, which affirmed with opin-

ion = August 26, 1976. Rehearing was denied October

1, 1976.

Petition for Certiorari was filed in the Supreme

Court of Florida on October 15, 1976. Certiorari was

denied by that Court on June 24, 1977.

SUMMARY OF ARGUMENT

This case raises very important issues concerning the

application at trial of the New York Times ‘actual

malice’ standard and the appropriateness, under the

facts of this case, of an award of $114,000 in compen-

satory damages, and $100,000 in punitive damages as

against the corporate defendant alone, where there was

no evidence introduced at trial to show substantial,

actual injury to the plaintiff, and where there was no

evidence of actual malice on the part of the corporate

defendant, Cape Publications, Inc.

In cases subsequent to New York Times v. Sullivan,

376 U.S. 254 (1964), this Court has set forth the sub-

jective nature of the ‘‘actual malice’ test, which is

keyed to the defendant’s state of mind in publishing,

rather than to the general impropriety or the degree

of nonfeasance involved. See St. Amant v. Thompson,

390 U.S. 727 (1968); Garrison v. Louisiana, 379 U.S.

64 (1964). In addition, this Court has established that

the requisite proof, that ‘“‘the defendant in fact enter-

tained serious doubts as to the truth of his publication,”’ —

St. Amant, supra at 731, must be ‘“‘clear and convine-

ing,”’ Gertz v. Robert Welch, Inc., 418 U.S. 323 at 331-

332 (1974) ; Rosenbloom v. Metromedia Inc., 403 US.

29 at 30 (1971), and exceed a showing of actual malice

by a mere preponderance of the evidence.

Nevertheless, the verdict for Respondent below is

not based upon evidence which meets this standard.

This action was brought on the basis of three primary

allegations concerning Respondent’s conduct of his

duties as Building Official. The publications in ques-

tion alleged (1) that he attempted to “shake down’’ a

construction foreman for $1,000 in return for Plain-

tiff’s approval of a particular construction project;

(2) that after purchasing $150.00 worth of mirrors

from this same contractor, he then coerced one of the

contractor’s employees to return his $150.00 while he

kept the mirrors; and (3) that he attempted to receive

from the Mayor of a neighboring city extra money for

performing, under contract, building inspections in

that city—‘‘money he wasn’t entitled to.”’

At trial, various of the cited sources for the allega-

tions in Petitioners’ published articles denied either

the truth of the allegations and/or the fact that they

made statements to Petitioners corroborating those

charges. Nevertheless, competent evidence was intro-

duced by Petitioners to rebut each of those denials.

The only evidence directly probative of Petitioners’

state of mind in publishing was a statement by one of

plaintiff’s witnesses, another local building contractor,

that Petitioner Newcome, and two individuals assist-

ing Newcome in the investigation and preparation of

the articles, had stated they were ‘‘out to get’”’ Re-

spondent. Each of these three individuals denied hav-

ing made such statements and the testimony of another

witness for Petitioners was introduced to effectively

impeach the credibility of the local contractor who al-

legedly overheard this statement. Thus, the funda-

mental error in the verdict below is that it is based on

a welter of conflicting testimonial evidence which by

no means constitutes clear and convine -

oe ing proof of ac

In addition, the evidence does not support the aw

to Plaintiff of either $114,000 in penned a ae

ages or $100,000 in punitive damages. Assuming argu-

endo that the evidence below was sufficient for a find-

ing of liability, and assuming that general damages

in the nature of hurt feelings, embarrassment, etc.,

may be presumed to result from the widespread dis-

tribution of a defamatory publication, there neverthe-

less was no evidence introduced which would reason-

ably justify an award of $114,000 in actual damages.

The Plaintiff suffered nominal monetary injurv and

retained his job as Building Official. The testimony

as to the character of Adams’ prior reputation was con-

flicting at best. Adams himself testified that both prior

and subsequent to publication of the articles in ques-

tion, he had received criticism concerning his work as

Building Official. Yet, although there appears to be no

basis in the evidence for such an award, the jury found

Adams injured to the extent of $114,000!

Finally, in the exercise of its practically uncontrol-

led discretion in awarding punitive damages, the jury’s

award of $100,000 in punitive damages, as against Cape

Publications, Inc., alone, and not Petitioners Baker

and Newcome, reveals an intent to recompense Re-

spondent for his ‘‘injury’’, and to punish those persons

involved, without regard to the evidence adduced as to

who in fact engaged in wanton and malicious conduct. —

There was no evidence introduced at trial which was

even purported to show wanton, oppressive conduct or

malicious intent on the part of any of the editorial or

managerial personnel of TODAY.

Therefore, without clear and convincing evidence of

actual malice on the employer’s part, the punitive

award of $100,000 as against Cape Publications, Inc.,

‘‘makes no sense at all,’’ Williams v. City of New York,

508 F.2d 356, at 360 (4th Cir. 1974). Moreover, inas-

much as this Court has acknowledged that—although

in defamation actions ‘‘the interest in protecting [pri-

vate figures] is . . . greater’’ than the interest in pro-

tecting public figures—States ‘‘have no substantial in-

terest in securing for [private figures] awards of

money damages far in excess of any actual injury”’,

Gertz v. Welch, 418 U.S. at 344, 349 (1974), there

clearly can be no compelling state interest in award-

ing to a public figure punitive damages far in excess

of actual injury, particularly where self-censorship

in reporting on public figures and governmental oper-

ations may result.

Thus, not only is the award of punitive damages he-

low unsupported by the evidence; by predicating lia-

bility, and the award of substantial ‘‘exemplary’’ dam-

ages as against Cape Publications, Inc. alone, on mere

denials by reported news sources, the verdict below

also significantly and impermissibly impairs Petition-

ers’ First Amendment rights without advancing any

compelling or overriding state interest.

ARGUMENT

The Evidence Adduced at Trial Below Does Not Support the

Judgment Against Petitioners Under the Actual Malice Test

of New York Times v. Sullivan

The fundamental error in the trial proceedings

against Petitioners below was the misapplication of the

“actual malice”’ standard of culpability enunciated by

this Court in its landmark decision in New York Times

v. Sullivan, 376 U.S. 254 (1964). There, this Court

recognized that common law standards of liability in

defamation actions posed the ‘‘risk of inducing a cau-

tious and restrictive exercise of the constitutionally

guaranteed freedoms of speech and press’’ and that

therefore some modification in the law of libel and

slander was required. Gertz v. Robert Welch, Inc., 418

U.S. 323, 340 (1974). As a means of accomodating the

free exercise of First Amendment rights with the legi-

timate state interest in redressing injury to personal

reputation, this Court introduced a constitutionally

founded, qualified privilege to publish defamatory

statements by requiring, as a necessary element of

proof in libel actions brought by public officials, that

the defamatory falsehood be published with ‘‘actual

malice.’’ Actual malice was defined as knowledge that

the statement was false or reckless disregard of wheth-

er it was false or not. New York Times v. Sullivan, su-

pra, at 279-280.

A definition of actual malice has been offered in

numerous subsequent cases involving public officials

and, after Curtis Publishing Co. v. Butts, 388 U.S. 130

(1967), public figures. In Garrison v. Louisiana, 379

U.S. 64, 79 (1964), Justice Brennan delivered the ma-

jority opinion and noted that “‘[t]he test . . . laid down

in New York Times is not keyed to ordinary care; de-

feasance of the privilege is conditioned, not on mere

negligence, but on reckless disregard for the truth.”’

What also has been emphasized in cases decided by this

Court subsequent to New York Times is that the ac-

tual malice standard of culpability is a subjective one,

narrowly keyed to the defendant’s state of mind rather

than the general propriety of his conduct in publish-

ing:

“In New York Times, supra, the plaintiff did not

satisfy his burden because the record failed to

show that the publisher was aware of the likeli-

hood that he was circulating false information.

... [R]eckless conduct is not measured by whether

a reasonably prudent man would have published

or would have investigated before publishing.

There must be sufficient evidence to permit the

conclusion that the defendant in fact entertained

serious doubts as to the truth of his publications.”’

St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

In Vandenburg v. Newsweek, Inc., 507 F.2d 1024

(5th Cir. 1975), the Fifth Cireuit Court of Appeals

stated that proof of actual malice “‘is not a proposition

that can be supported by a formative conclusion that

the publisher should have known of the falsity of the

statement. Rather, evidence—direct or circumstantia}

—of the publisher’s subjective awareness is required.”’

Td. at 1026.

Thus, for a finding of liability sufficient under New

York Times, the ‘‘reckless disregard’? must relate to

the accuracy of the publication and not the reputa-

tional interests of the person defamed. IIl-will, a speci-

fic intent to inflict harm, and indifference to the effect

of an injurious publication upon the plaintiff do not,

in and of themselves, suffice. In Greenbelt Cooperative

Publishing Association v. Bresler, 398 U.S. 6, 10

( 1970), this Court held that instructions to the jury

which would allow it ‘‘to find liability merely on the

basis of a combination of falsehood and general hos-

tility . .. was error of constitutional magnitude.”

Finally, the evidence adduced to prove actual malice

must do so with “convincing clarity.’’ New York

Times v. Sullivan, supra, at 285-286. Stated differently,

the subjective state of mind required of the defendant

at the time of publication must be shown with “clear

and convincing proof.”’ Gertz v. Robert Welch, Inc.,

supra at 331-332; Rosenbloom v. Metromedia, Inc., 403

U.S. 29, 30 (1971). One state court, focusing on the

nature of the evidence required, has stated that ‘‘clear

_ and convincing proof’’ is “‘strong, positive, free from

doubt” and ‘‘full, clear and decisive.’’ Stone v. Essex

rang Newspaper, Inc., 330 N.E.2d 161, 175 (Mass.,

In an article from which the actual malice standard

was largely taken, Professor McBaine stated the bur-

OP SO OT IR a TCE UTE Te

—

— is ta id

den required of a plaintiff to show actual malice with

convincing clarity :

‘“‘The burden [of persuasion] is not a burden of

convincing you that the facts which are asserted

are certainly true or that they are almost certainly

true, or are true beyond a reasonable doubt. It is,

however, greater than a burden of convincing you

that the facts are more probably true than false.

The burden imposed is to convince you that the

facts asserted [i.e., knowledge of probably falsity ]

are highly probably true, that the probability that

they are true or exist is substantially greater than

the probability that they are false or do not exist.”’

McBaine, ‘‘Burden of Proof: Degrees of Belief,’’ 32

Cal. L. Rev. 242, 246, 263-63 (1944). See also Morgan,

‘Instructing the Jury Upon Presumptions and Bur-

den of Proof,’’ 47 Harvard L. Rev. 59, 66 (1933).

Thus, any assessment of the sufficiency of the evidence

adduced at the trial of Petitioners below must be made

in light of the foregoing definitions of what constitutes

clear and convincing proof of actual malice.

Turning first to the evidence at trial concerning the

basis for the printed allegations that Adams attempted

to ‘‘shake down’”’ Bernard for $1,000.00, the reporter

Newcome testified that he was first told by either Sar-

della, a deputy sheriff for Indian River County, or St.

Pierre, a local builder, that Wilcox, another local

builder, had information concerning the attempted

bribe solicitation. Appendix B, p. 8a. After hearing

this, Newcome discussed it with Wilcox. According to

Newcome’s testimony, Wilcox stated that he had been

told of the attempted shakedown by Bernard himself,

who was an employee of Wilcox. App. B, p. 8a. New-

come then interviewed Adams, who denied the allega-

tions, and Bernard, who reluctantly talked with New-

come and denied reporting to Wilcox any attempt by

Adams to obtain a bribe. App. B, p. 9a. Following pub-

lication, and for the first time, Wilcox denied having

made the statements which had been attributed to him

in the article. App. B, pp. 10a-12a.

Aside from the question of whose trial testimony is

to be believed as to whether or not Wilcox told Sar-

della, St. Pierre or Newcome that Bernard had pre-

viously spoken of a shakedown by Adams, it is clear

that Sardella, St. Pierre and Newcome have main-

tained, both prior and subsequent to the publication,

that Wilcox did make such a statement to them. App.

B, pp. 9a-12a. Moreover, it is not unlikely to suppose

that Berrard and Wilecox—who, in order to continue

to do business in the Vero Beach area, would have to

submit their construction plans to Adams for his ap-

proval—might have an interest in recanting their earl-

ier discussions with Newcome.

When asked at trial whether the denial by Bernard,

prior to publication, warranted meetings for the pur-

pose of further verification, Newcome testified :

**No, I don’t think it was up to me to continue

meeting. I had statements from Mr. Wilcox that it

had occurred. I had facts from Mr. St. Pierre and

Mr. Sardella, that he had told the same thing to

them on separate occasions within the presence of

two people. He [Wilcox] confirmed it to me and

then Bernard said it hadn’t yy 6 ama I think

three people was sufficient. . . .’’ App. B, p. 12a.

A second allegation contained in the June 11, 1972

edition of TODAY concerned the purchase by Adams

of some extra mirrors which Wilcox had purchased for

installation in the condominium project, Village

Spires:

‘‘On another recent occasion Wilcox said Adams

expressed interest in three smoked mirrors in the

Village Spires. Adams inquired as to the cost and

was told by Bernard that the contractor paid

$150.00 and if Adams wanted them he could pur-

chase them at that price. Adams gave a personal

check for $150.00 to Bernard and took the mirrors.

The next day he returned and told Bernard he

wanted his $150 refunded in cash. He did not re-

turn the mirrors.’’ App. B, p. 41a.

This ‘‘mirror incident’’ allegedly took place, as did

the alleged ‘‘shakedown’”’ of Bernard for $1,000.00, in

connection with Adams’ decision—after having re-

viewed the architect’s plans and issued the requested

construction permits—to refuse to approve the com-

pleted installation of interior and exterior doors in the

Village Spires condeminium project. Replacement of

the doors would have cost Wilcox’s firm approximately

$30,000.00 in extra costs.

At trial, Newcome testified that he first heard of the

mirrors incident from Deputy Sheriff Sardella, based

on Sardella’s prior conversation with Wilcox. Wilcox

testified that in his meeting with Sardella,

“‘T related to him that our superintendent, Mr.

Bernard, had also questioned Mr. Adams’ motives

and that Mr. Bernard had questioned whether or

not he was harrassing or trying to solicit any fav-

ors or anything of this nature for making the

, and I related this to him [Sardella], yes.”

(T 502)

And, as to the truth of the underlying charge,

**Q—And did you so receive such a check ?

**A—( Wilcox )—Yes, sir.

““Q—Now, to your personal knowledge, did Mr.

Adams come back to your company and ask

for his hundred and fifty dollars back with-

out giving the mirrors back ?

‘*A— He did not come to me.

“*Q—Now, did Bernard ever report any such thing

to you that Mr. Adams has come back and

asked for his hundred and fifty dollars hack

but wasn’t going to give the hundred and fifty

dollars back?

**A—Mr. Bernard did state to me that he thought

in consideration of the problems that Mr.

Adams had gone through on the job, because

it was unpopular, that maybe that money

should be refunded to him.

“‘Q—Did he say that Mr. Adams asked that it be

refunded ? |

** A—I don’t remember that he did, but I can’t say

that he didn’t.’’ (T 510-511)

Sardella, under direct examination by Plaintiff’s

counsel, concerning his interviews of Wilcox, stated

unequivocally that Wilcox told him that Adams had

purchased ‘‘the mirrors with a check for $150.00, re-

turned the next day and asked him for the money back

in cash.’’ App. B, p. 12a. Newcome testified that he

then contacted Wilcox and confirmed what he under-

stood Bernard to have told Wilcox regarding both the

mirrors and the solicitation of a $1,000.00 bribe. At

trial, Bernard admitted that he felt Adams’ decision,

after issuance of construction permit, to withhold ap-

proval of the doors was a ‘‘stupid’’ and ‘‘bad”’ deci-

sion. Yet he denied ever having refunded, or having

told anyone that he refunded Adams’ money.

A third statement which was published in TODAY

and which served as a separate basis for Adams’ com-

plaint below reads:

‘‘The Mayor of Indian River Shores told TODAY

that Adams —— to persuade the mayor to

write a personal check to fom each year for

$2,000 and another for $400 to Adams’ secretary

for ‘extra work’ which town building inspections

caused Adams—work Adams was already being

paid for.’’ App. B, p. 36a.

At trial, Roland Miller, Mayor of Indian River

Shores, testified that he had never made any of the

statements quoted in TODAY either to Sardella or to

Newcome. App. B, p. 17a. Sardella acknowledged that

Mayor Miller had spoken to him of an attempt to shake

down the City of Indian River Shores for unjustified

pay for unjustified work, but denied that he had re-

lated such statements to Newcome. App. B. pp. 13a-

14a. Connie Bishop, another defense witness, who at

the time of trial was the Ft. Pierce Bureau Chief of

TODAY but who was employed by the Vero Beach

PRESS JOURNAL, a competitor, at the time of pub-

lication, stated that during the time period in question,

she met with Miller for lunch and he vociferously com-

plained that Adams was improperly seeking money

‘“‘from me up there’’, meaning in the town of Indian

River Shores. App. B, pp. 14a-16a. Under plaintiff’s

direct examination of him as an adverse witness, New-

come stated that he did speak with Miller concerning

Adams’ attempt to secure ‘‘payola’’, and that the pub-

lished article accurately reflected what Miller had told

him. App. B, pp. 16a-17a.

Thus, in assessing whether that portion of New-

come’s article, which dealt with attempts by Adams to

receive payola for his work on behalf of the town of

Indian River Shores, was published with actual malice,

the jury had to weigh the testimony of (1) Newcome,

who asserted that the published comments in question

accurately reflected what Sardella and Mayor Miller

had said to him, App. B, p. 16a; (2) Sardella, who tes-

tified that although, in his investigation of Adams,

Miller had told him of Adams’ attempt to obtain

payola, he, Sardella, did not tell Newcome of this

conversation, App. B, pp. 13a-14a; (3) Ms. Bishop,

who testified that Miller expressed to her the very

same charges of Adam’s impropriety as Sardeila

and Newcome testified Miller had expressed to them,

App. B, pp. 14a-16a; and (4) Mayor Miller, himself,

who admitted discussing with both Sardella and New-

come the issue of overtime pay for Adams which was

before the City Council of Indian River Shores, but

denied telling anyone that Adams was trying to shake

down the town for money he wasn’t entitled to. App.

B, p. 17a. It is, in part, on this welter of conflicting

testimony that the jury based its findings that by

“‘elear and convincing proof’’ the Petitioners in fact

entertained serious doubt as to the truth of their pub-

lished comments.

Another comment contained in the June 11, 1972

edition of TODAY, and which was objected to, was

that attributed to one Robert DiBassie, a local con-

tractor who had dealt with Mr. Adams and the Build-

ing Department over several years. The article read:

*‘Bob LeBase [DiBassie], Vero Beach drywell

contractor, described construction work as ‘‘a rot-

ten goddam business.’ City building inspectors can

put a man out of business if they wish, the con-

tractor said.’’ App. B, pp. 39a-40a.

At trial, Newcome and Sardella testified that they

met with DiBassie at a local bar, Big Daddy’s Lounge,

and engaged in a discussion concerning the operation

of the Building Department by Adams. Newcome and

Sardella’s testimony corroborated the fact that DiBas-

sie referred to the ‘‘rotten goddam [construction]

business’’ wherein payoffs and selective enforcement

of the building codes were not uncommon. App. B, pp.

17a-19a. DiBassie, however, testified that although he

did meet once with Sardella and Newcome to discuss

the local construction business, he never made the ‘‘rot-

ten ... business’’ statement and he denied finding any

serious fault with Adams or the Building Department.

DiBassie, however, did admit on cross-examination,

that he had called St. Pierre to explain to him that he

was sympathetic regarding St. Pierre’s problems with

Adams and that he (DiBassie) too was experiencing

difficulties in dealing with Adams, App. B, pp. 21a-22a.

DiBassie also testified that in his conversation with

Sardella, Sardella stated that he and Newcome were

out ‘‘to get Adams.’’ App. B, p. 20a. This was denied

by Sardella and Newcome. App. B, pp. 18a, 23a.

The defense also called as a witness Ms. Shirley Bur-

nett, who was the bartender at Big Daddy’s Bar at the

time of DiBassie’s conversation with Sardella and

Newcome. She testified that she was acquainted with

DiBassie, Sardella, and Neweome and had seen them

together on occasion at Big Daddy’s. She also testified

that on various occasions she had overheard DiBassie

downgrading the construction trade in Vero Beach;

that, contrary to the testimony of DiBassie, he had

oftentimes used profane language in these conversa-

tions; and that he once stated, in apparent reference

to the Building Department, that ‘‘he wasn’t going to

kiss anybody’s a - - to build in Vero Beach.’’ App. B,

pp. 23a-24a.

Also testifying for the defense was a Virginia Boso,- -

who was employed as a receptionist at the Building

Department, City of Vero Beach, from June, 1973 to

June, 1974. She confirmed the general accuracy of

allegations of selective enforcement of the Building

Code, and alleged that at least from mid-1973 to mid-

1974, Mr. DiBassie’s requests for site and plan ap-

provals generally received more favorable and expedi-

tious treatment than those of other contractors, App.

B, p. 25a. This not only corroborates Newcome’s alle-

gations of impropriety, but suggests possible bias and

a lack of accuracy in DiBassie’s testimony where he

testified that they were ‘‘out to get’? Adams and denied

having ever told Sardella or Newcome of misconduct

on Adams’ part.

In addition, unlike DiBassie and Mayor Miller, none

of those witnesses whose testimony corroborated either

the accuracy of Newcome’s attributions to sources, or

the truth of the underlying charges against Adams,

were shown to have made prior inconsistent state-

ments. Finally, there was no admission or. declaration

against interest by Newcome or any other TODAY

staff members to support any implication of publica-

tion with knowing or reckless falsity. Goldwater v.

Ginzburg, 414 F.2d 324 at 336-337 (2nd Cir., 1969).

Admittedly, some of the cited sources for each of the

news story’s three major allegations against Adams

deny either the truth of the underlying charge and/or

the fact that they had made corroborative statements

to Newcome. Nevertheless, in each and every instance,

the evidence on all of these points is clearly in dispute.

Bearing in mind that even ‘‘negligence . . . is consti-

tutionally insufficient to show actual malice,’’ New

York Times v. Sullivan, supra, 376 U.S. at 288, no im-

plication—let alone clear and convincing proof—of ac-

tual malice arises from the foregoing evidence. In at-

tempting to determine whether Petitioners acted with

actual malice in publishing this article, we respectfully

urge this Court to recall the fact that:

‘‘TA] vast amount of what is published in the

daily and periodical press purports to be descrip-

tive of what somebody said rather than what some-

body did. Indeed, perhaps the largest share of

news concerning the doings of government ap-

pears in the form of accounts of reports, speeches,

press conferences, and the like. The question of the

truth’ of such an indirect newspaper report pre-

sents rather complicated problems.

‘‘A press report of what someone has said about

an underlying event of news value can contain an

almost infinite variety of shadings . . . [Where

the source itself has engaged in qualifying the in-

formation released, complexities ramify.’’

Time v. Pape, 401 U.S. 279, 285-286 (1971).

It is respectfully submitted that the uncorroborated

testimony of Wilcox and Miller wherein they denied

having made statements attributed to them does not

constitute the affirmative evidence necessary to meet

the constitutional standard of ‘‘clear and convincing

proof.’’ One of the major issues considered by the jury

was whether to believe the testimony of Wilcox and

Miller, on the one hand, or the testimony of Newcome,

Sardella and St. Pierre—issues of personal appear-

ance and credibility. The Supreme Court did not in-

tend the constitutional zone of protection to hang by

such a slender thread.

In Cantrell v. Forest City Publishing Co., 419 U.S.

245 (1974), the Supreme Court held, in an invasion of

privacy action based upon the ‘‘false light’’ theory,

that there was sufficient affirmative evidence that the

published comments had been fabricated by defend-

ant’s reporter with actual knowledge of falsity. Can-

trell is of no comfort to plaintiff in the case at bar. Not

only did Mrs. Cantrell deny the published comments

attributed to her, but it was affirmatively established

that defendant’s reporter had not seen or interviewed

her at all. Thus, there was affirmative corroborative

evidence submitted by Mrs. Cantrell in support of her

denial, sufficient to meet the constitutional standard.

In the case at bar, plaintiff’s witnesses admitted that

the interviews had taken place and confirmed the ac-

curacy of substantial portions of those interviews as

reported in TODAY.

The vast majority of the articles printed daily by

newspapers contain statements made by persons inter-

viewed on matters of public interest. If newspapers

are cast into jeopardy each time an attributed state-

ment is published, then newspapers will soon contain

merely reporters’ subjective conclusions without attri-

bution. The public’s need to know is satisfied, in no

small measure, only by providing the public, in its eval-

uation, the source of the statements reported ivy the

newspapers.

Experience shows that persons quoted in the news-

papers are rarely satisfied subjectively with those por-

tions of their statements ultimately published. Claims

are made daily by news sources who subsequently

deny the making of the statements published; or who

contend that the statements were published out of

context; or who complain that the subjective position

to which the statements are addressed is so inartfully

set forth as to distort; or who proclaim a failure of

memory as to making the statements published. In to-

day’s news world, statements published in the news-

papers about matters of public interest are often ob-

tained by telephone or through personal interviews,

unwitnessed by third parties. If the media’s constitu-

tional zone of protection can be jeopardized by a simple

denial that the published statements were made by the

news source, then the First Amendment’s encourare-

ment of a free press will be rendered impotent. See

Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th

Cir., 1975); New York Times v. Connor, 365 F.2d 567

(5th Cir., 1966).

If the judgment in the case at bar is allowed to stand,

the rights of free speech and a free press virtually will

be relegated, once again, to the common law libel stand-

ard of strict liability, dependent simply upon resolu-

tion by a jury of the subjective issue of the personal

appearance and credibility of news sources at trial.

The cautious editor will be returned to stringent self-

censorship. :

A simple denial of having made statements might

require jury resolution of the subjective issue of credi-

bility, if the constitutional burden of proving actual

malice was that of a preponderance of the evidence;

however, it is clearly inadequate to meet the far more

demanding constitutional burden of showing actual

malice by ‘‘clear and convincing proof.’’ A denial by a

news source does not create proof that is “‘ .. . ‘strong,

positive and free from doubt’. . . and ‘full, clear and

decisive’. . .”’ Stone-v. Essex County Newspapers,

Inc., 330 N.E.2d 161, at 175 (Mass., 1975). Neither does

it accord with the conclusion of this Court in Gertz v.

Welch, 418 U.S. 323, 340: ‘‘Allowing the media to

avoid liability only by proving the truth of all injuri-

ous statements does not accord adequate protection to

First Amendment liberties.’’

The evidence of actual malice adduced below clearly

does not rise to the level of credibility as that reviewed

by this Court in Curtis v. Butts, 388 U.S. 158 (1967).

In Butts, the Saturday Evening Post knew its sole and

one-time informant had been put on probation due to

bad check charges. It also was shown that

‘‘[e]lementary precautions were . . . ignored. The

Saturday Evening Post .. . proceeded to publish

the story on the basis of [their sole source’s] affi-

davit without substantial independent support.

[The source’s] notes were not even reviewed by

any of the magazine’s personnel prior to publica-

tion.’’ Id. at 157.

In contrast to the evidence before this Court in

Butts, the evidence below of knowing or reckless dis-

regard for falsity is clearly disputed by Newcome, by

the editorial staff of TODAY, and by Sardella and St.

Pierre. Beyond that, trial testimony as to the extensive

degree of pre-examination and review given to the

articles by both counsel and editorial personnel for TO-

DAY is uncontroverted and—the question of the negli-

gence or uncriticalness of that review aside—clearly

militates against a finding of publication with knowing

or reckless falsity. App. B, pp. 26a-30a. See also, Car-

dillo v. Doubleday & Co., 366 F.Supp. 92, 94 (S.D.N.Y.,

1973), aff’d, 518 F.2d 638 (2nd Cir., 1975) ; Time, Inc.

v. McLaney, 406 F.2d 565, 570-573 (5th Cir., 1969) ;

Baldine v. Sharon Herald Co., 391 F.2d 703, 707 (3rd

Cir., 1968); Buchanan v. Associated Press, 398 F.

Supp. 1196 (D.D.C., 1975) ; Meeropol v. Nizer, 381 F.

Supp. 29, 35 (S.D.N.Y., 1974), aff’d, 505 F.2d 232

(2nd Cir., 1974).

Nor can actual malice be implied from the fact that

the newspaper published the allegations with the

knowledge that two principals, Adams and Bernard,

denied the charges. A case on point is Edwards v. Na-

tional Audubon Society, Inc., —— F.2d —— (2nd Cir.,

1977), in which public figure scientists brought a libel

action as a result of a newspaper article which reported

charges by the National Audubon Society that the

scientists were being paid by the pesticide industry to

lie about the effect of the pesticide DDT on birds. The

Court rejected the scientists’ contention that the

charges were published with actual malice because the

reporter involved heard the scientists’ denials before

publication. The court noted:

‘‘Surely liability under the ‘clear and convincing

proof’ standard of New York Times v. Sullivan

cannot be predicated on mere denials, however ve-

hement; such denials are so commonplace in the

world of polemical charge and countercharge that,

in themselves, they hardly alert the conscientious

reporter to the likelihood of error.’’

Nor does the decision to publish, in spite of the fact

that ‘‘Newcome knew his source St. Pierre had a feud

going with [Adams]”’, Cape Publications, Inc. v.

Adams, 336 So.2d 1197, at 12060 (1976), in itself con-

stitute evidence of actual malice. App. A, p. 5a. As

noted in Washington Post Co. v. Keogh, 365 F.2d 965

(D.C. Cir. 1966), cert. denied, 385 U.S. 1011 (1967)

‘‘TA] publisher has reason to suspect a publication’s

accuracy where he knows or should know that the

author or endorser is persistently inaccurate.’’ Id. at

971 (emphasis added). Plaintiff, it is respectfully sub-

mitted, made no showing at trial below of ‘persistent

inaceuracy’’ by Newcome, St. Pierre, or Sardella.

Admittedly, a publisher’s

“‘[p]rofessions of good faith will be unlikely to

rove persuasive, for example, where a story is

abricated. . ., is the product of his imagination,

or is based wholly on an unverified, anonymous

telephone call. Nor will they be likely to prevail

when the publisher’s allegation are so inherently

improbable that only a reckless man would have

put them in circulation.’’ St. Amant v. Thompson,

supra at 732.

Petitioners respectfully submit that a review of the

trial record below will affirmatively persuade this

Jourt that none of the foregoing circumstances per-

mitting a finding of actual malice were shown, by clear

and convincing proof, to have been involved in peti-

tioners’ publication at issue herein.

After receiving instructions from the trial court, the

jury retired to deliberate, and returned with a verdict

of $114,000.00 in compensatory damages (based upon

the circulation of 57,000 copies of the defamatory ar-

ticle), and $100,000.00 in punitive damages. This ver-

dict was unwarranted by the evidence. Moreover, the

trial court should not have turned the case over for

deliberation by the jury, without first having ruled on

Petitioners’ pending motion for directed verdict.

Because experience teaches that ‘‘the possibility

fexists] that a jury will use the cloak of a general ver-

dict to punish unpopular ideas or speakers’’, Rosen-

blatt v. Baer, 383 U.S. 75, at 88, n.15 (1966), it is eriti-

cally important that.

“judges focus attention on the summary judg-

ment, directed verdict and judgment notwith-

standing the verdict procedures in libel actions.

When civil cases may have a chilling effect on

First Amendments rights [See, Dombrowski v.

Pfister, 380 U.S. 470 (1965) ; Konigsberg v. Time,

Inc., 312 F.Supp. 848 (S.D.N.Y., 1970) ; Sprouse

v. Clay Communications, Inc., 211 S.E.2d 674

(1975), cert. denied, 423 U.S. 882 (1975) ] special

eare is appropriate. Thus, a judicial examination

at these stages of the proceeding, closely scrutiniz-

ing the evidence to determine whether the case

should be terminated in a defendant’s favor, pro-

vides a buffer against possible First Amendment

interference.’’ Guam Federation of Teachers, Lo-

cal 1581, A.F.T. v. Ysrael, 492 F.2d 438, at 441

(9th Cir., 1974).

See also, Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d

858, 864-865 (5th Cir., 1970); Wasserman v. Time,

Inc. 138 U.S. App. D.C. 7, 9, 424 F.2d 920, 922-923

(D.C. Cir., 1970) (J. Skelly Wright, concurring) ;

Cerrito v. Time, Inc., 302 F.Supp. 1071, 1075 (N.D.

Cal., 1969), aff’d 449 F.2d 306 (9th Cir., 1971); Me-

Farland v. Hearst Corporation, 332 F.Supp. 746 (D.

Md., 1971). This the trial court failed to do.

The primary purpose and import of this Court’s

landmark decision in New York Times v. Sullivan is

to free newspapers from jury consideration of alleged

libels against public officials, unless the evidence pre-

sented by the plaintiff, judicially considered, contains

clear and convincing proof of actual malice. At trial

below, the court denied Petitioners’ motion for sum-

mary judgment, noting that ‘*. . . there may be an in-

ference drawable from the testimony that would estab-

lish a genuine issue of material fact.’’ Clearly, the pos-

sible existence of an inference which would establish

a genuine issue of material fact is insufficient, and too

speculative a showing, to authorize submission of the

case to the jury.

At the close of plaintiff’s evidence, Petitioners

moved for a directed verdict, which was denied, with-

out any discussion by the court of the sufficiency of the

evidence. Later, at the close of all the evidence, Peti-

tioners renewed the motion for directed verdict. The

court took this motion under advisement, and then pro-

ceeded to instruct the jury and submit the case for

their deliberation. This, it is respectfully submitted,

constituted reversible error. For,

“in order to recover, [Plaintiff] would have to

prove with ‘convincing clarity’ that the statements

of the publications . . . were made with knowledge

that they were false .. . or were made with reckless

disregard of whether they were false or not. And

in order to be entitled to proceed in this respect,

[Plaintiff] could be required to show, on proper

challenge as by the motion and showing for sum-

mary disposition here, that it had sufficient proba-

tive substance to be able litigably to give rise to an

tissue of fact on whether such malice actually ex-

isted or not.’”? United Medical Laboratories v.

C.B.S., 404 F.2d 706, 712 (9th Cir., 1968) (em-

phasis added.)

The court below, by reserving judgment on Petition-

ers’ pending motion for directed verdict and proceed-

ing to submit the case to the jury for their deliberation,

clearly failed to provide this constitutionally mandated

“safeguard of judicial scrutiny.’’ Jd. at 713. As inter-

preted by the news media throughout this country, New

York Times v. Sullivan

“added to the tort law of the individual States a

constitutional zone of protection for errors of fact

caused by negligence. The publisher who main-

tains a standard of care such as to avoid knowing

falsehood or reckless disregard of the truth is

thereby given assurance that those errors that

nonetheless occur will not lay him open to an in-

determinable financial liability.’’ Time v. Pape,

401 U.S. 279, 291 (1971).

In deliberately proceeding to publish the TODAY

article on corruption and mismanagement within the

local building department, the editors and reporters

involved specifically relied on such assurance; and, the

trial court below effectively eviscerated that assurance.

At the time of publication, petitioners were not un-

mindtul of the prior denials by Adams and Bernard.

Petitioners were also aware that other individuals who

served as credible sources might face certain pressures

to recant—pressure from both the standpoint of threat-

ened exposure to litigation and from the standpoint of

harrassment at the hands of Respondent.

Yet, this Court has explicitly established that ‘‘a rule

compelling the critic of official conduct to guarantee

the truth of all his factual assertions . . . leads to pon

[impermissible] ‘self-censorship.’’’ New York Times

v. Sullivan, supra at 279. Thus, in justifiable reliance

upon this constitutionally based conditional privilege,

after substantial factual research, and upon a good

faith belief in the accuracy of its allegations, Petition-

ers published.

Nevertheless, although ‘‘malice may not be presumed

but is a matter of proof by the plaintiff’, Fram v. Yel-

low Cab Company, 380 F.Supp. 1314, 1335 (W.D.Pa.

1974), the trial court submitted this case to the jury,

which then reasoned by inference upon inference that

(1) if the firsthand and/or secondhand source for cer-

tain allegations denied giving Petitioners certain cor-

raborative information, then (2) at the time of publi-

cation, Newcome must have known they did not have

corraborative information, and (3) therefore New-

come must have concocted the testimonial basis for his

story and published with actual malice.

Thus, the verdict below subjects Petitioners to enor-

mous financial liability when Plaintiff’s only evidence,

directly probative of Petitioners’ subjective awareness

at the time of publication, is the hotly disputed allega-

tion of DiBassie that Newcome and Sardella had said

they were ‘‘out to get’’ Adams. Clearly, this falls short

of proof with convincing clarity, and a verdict founded

on such evidence ‘‘constitute[s] a forbidden intrusion

on the field of free expression.’’ New York Times, su-

pra at 285.

The Award io Piaintifi of $214,000, Including $100,000 in Punitive

Damages, Impairs the Exercise of First Amendment Freedoms

to the Extent of Imposing Self-Cersorship, Is Unsupported

by the Evidence, and Does Not Properly Promote a Com-

pelling State Interest

Petitioners respectfully submit that the jury’s aware

to Adams of $114,000 in compensatory damages, and

$100,000 in punitive damages, is shockingly excessive

in light of the insubstantial evidence adduced at trial

with respect to both the general and special damages

suffered by Adams, and the absence of “‘highly moti-

vated, tortious conduct [by Cape Publications, Inc.],

i.e., reprehensible conduct that is motivated by ill will,

or is accompanied by malice, fraud or oppression.”’

Maheu v. Hughes Tool Co., 384 F.Supp. 166, 172 (C.D.

Cal., 1974). Adams himself testified that he is still em-

ployed as Chief of the Building Department and that,

“both before this publication and after this publica-

tion,’’ he received “derogatory letters’’ concerning his

performance in the contracting field. App. B, p. 31a.

Mr. William Hawkins, a Vero Beach plumbing con-

tractor, testified that, among those persons in the local

construction trades, Adams’ reputation for ‘expertise

and ability in the performance of his duties,’’ and ‘‘for

his fairness in the performance of his duties,’’ was

bad. App. B., p. 31a. Hawkins also testified that in

1972, another local builder passed inspection by

Adams’ office after installing—contrary to the Build-

ing Code—plastice pipe in a multi-unit dwelling. Haw-

kins testified that he brought this to the attention of

Adams, but nothing was done. He then installed plastic

pipe in one of his own multi-unit projects and was un-

able to receive Adams’ inspection approval. Hawkins’

complaints were ignored; fortunately, the Code was

subsequently amended to permit plastic pipe. This in-

cident was accurately reported in the June 11, 1972

edition of TODAY. Thereafter, Hawkins testified, he

had a very difficult time getting any of his plumbing

work approved by inspectors from Adams’ office.

Mr. Carl Hedin, a Vero Beach general contractor

and member of the Association of General Contractors,

also testified that Adams’ prior ‘‘reputation among

builders and in the building trade in the performance

of his duties as Building Official’? was bad. App. B,

pp. 3la-32a.

Another witness, C. Reed Knight, a local builder and

citrus grower, testified regarding certain instances of

‘dual enforcement’’ of the Building Code by Adams’

office which had the ‘‘appearance of favoritism.’’ He

also testified that prior to June of 1972, Adams ‘‘didn’t

have a good reputation’”’ for ‘‘fairness in the perform-

ance of his duties as Building Official.’’ App. B, pp.

33a-34a.

Finally Robert Stone testified that he represented

Bernard St. Pierre in a criminal proceeding, initiated

by Adams, wherein St. Pierre was charged with willful

violation of the Building Code in connection with a

particular construction project. St. Pierre was found

not guilty by a jury, but was still not allowed by Adams

to proceed with construction. In an effort to compel

Adams to permit St. Pierre to proceed with construe-

tion, Stone then filed a mandamus proceeding against

Adams in which he introduced tapes of earlier conver-

sations between Adams and St. Pierre, wherein Adams

insisted that he would not permit St. Pierre to proceed

with construction unless and until St. Pierre pled

guilty in the criminal proceedings. St. Pierre prevailed

in the mandamus action and then filed a civil suit for

damages against Adams and the City of Vero Beach.

This action was settled out of court; the fact of this

settlement was not permitted to be introduced into evi-

dence below. The witness, Stone, testified that, inas-

much as a Vero Beach municipal ordinance authorized

revocation of a builder’s license upon conviction for

Building Code violations, he vehemently questioned the

propriety of Adams’ conduct—both in terms of pos-

sible extortion and possible perjury on Adams’ part at

St. Pierre’s criminal trial. App. B, pp. 35a-36a.

Various witnesses testified as to the injury suffered

by Adams as a result of the publication of Newcome’s

article. Adams’ wife testified that, after publication,

Adams became withdrawn and their married life was

adversely affected for a period of months. One witness,

Ms. Fleisher, who was a neighbor and friend of Adams,

testified that Adams became withdrawn and irritable

following the publication of Newcome’s story, but that

he had improved and was becoming more sociable

again. A licensed contractor and member of the County

Commission named Jack Dritenbas, and Alma Lee

Long, another member of the County Commission, tes-

tified that Adams’ prior reputation for truth and verac-

ity was good.

It has been emphasized by various state courts, fed-

eral circuit courts, commentators, and members of this

Court, that a jury’s discretion in the award of punitive

damages in libel actions imposes a very direct and

substantial chilling effect upon the exercise of First

Amendment press freedoms. See Gertz v. Welch, 418

U.S. 323, at 346, 349-350 (1974) ; Rosenbloom v. Metro-

media, Inc., 403 U.S. 29, at 58-65 (White, J., coneur-

ring), 74-75 (Harlan, J., dissenting), 78-87 (Marshall

and Stewart, JJ., dissenting) (1971); Buckley v. Lat-

tell, 539 F.2d 882, 897 (2nd Cir., 1976); Maheu v.

Hughes Tool Co., 384 F.Supp. 166 (C.D.Cal., 1974) ;

Afro-American Publishing Co. v. Jaffe, 366 F.2d 649,

662 (D.C. Cir., 1966) ; Stone v. Essex, 330 N.E.2d 161

(Mass., 1975); Taskett v. King Broadcasting Co., 86

Wash.2d 439, 545 P.2d 81 (1975); Farrar v. Tribune

Pub. Co., 57 Wash. 549, 358 P.2d 792 (1961) ; Restate-

ment (Second) of Torts, Explanatory Notes, § 621,

Comments b and f, at 286, 288 (Tentative Draft, Nov.

20, 1974); and ‘Punitive Damages in Defamation

Litigation: A Clear and Present Danger to Freedom

of Speech’’, 64 Yale L.J. 610, 613 (1955). As elo-

quently articulated by Justice Marshall, in his dissent

from the majority opinion in Rosenbloom v. Metro-

media, Inc.:

‘“‘Our notions of liberty require a free and vigor-

ous press that presents what it believes to be in-

formation of interest or importance ; not timorous,

afraid of an error that leaves it open to liability

for hundreds of thousands of dollars.

“The unlimited discretion exercised by juries in

- awarding punitive damages and presumed dam-

ages [available in Florida, under Bobenbousen v.

Cassat, 344 So.2d 279, 282 (1977) ], compounds the

problem of self-censorship that necessarily results

from the awarding of huge judgments. This dis-

cretion allows juries to ize heavily the un-

orthodox and the unpo and exact little from

others.’’ Id. at 82, 84 (emphasis added.)

Thus, inasmuch as the award of punitive damages in

libel actions may work a restraint upon the exercise

of First Amendment freedoms, this Court must ‘‘make

an independent examination of the whole record,’’ in

order to “‘assure that the judgment does not constitute

a forbidden instrusion on the field of free expression.”’

New York Times v. Sullivan, supra, at 285; see also,

Edwards v. South Carolina, 372 U.S. 229, 235 (1963) ;

Blackburn v. Alabama, 361 U.S. 199, 205 n.5 (1960).

Moreover, since the free exercise of First Amendment

freedoms are at stake, any punitive award may be up-

held only if it effectuates a ‘‘subordinating [state] in-

terest which is compelling.’’ Bates v. Little Rock, 361

U.S. 516, 524 (1960). .

The award of punitive damages must also be shown

to be “‘necessary, and not merely rationally related, to

the accomplishment of a permissible state policy.’’ Mc-

Laughlin v. Florida, 379 U.S. 184, 196 (1964). Finally,

the award of punitive damages must effectuate the

compelling state interest by the least restrictive means

available. See, Nebraska Press Ass’n v. Stuart, ——

US. ——, 49 L.Ed 2d 683 (1976); Coates v. Cincin-

nati, 402 U.S. 611 (1971).

When considered in light of the foregoing multifold

standard of review, the award to Adams below of

$100,000 in punitive damages clearly constitutes an un-

warranted impairment of press freedom. As a practical

matter, the First Amendment field—where the tension

between a Constitutional right and the state interest

in redressing reputational injury is immediately felt

—is an inappropriate area of the law for the inter-

vention of elements of criminal law, i.e., punitive

sanctions."

Moreover, the state’s interest in safeguarding the

reputation of its public officials is not clearly of com-

pelling magnitude. As noted by this Court in Gertz v.

Welch, 418 U.S. 323 (1974) :

‘The first remedy of any victiin of defamation is

self-help—using available opportunities to con-

tradict the lie or correct the error and thereby to

minimize its adverse impact on reputation. Public

officials and public figures usually enjoy signifi-

cantly greater access to the channels of effective

communication and hence have a more realistic

opportunity to counteract false statements than

private individuals normally enjoy. Private indi-

viduals are therefore more vulnerable to injury

and the interest in protecting them is correspond-

ingly greater.’’ Id. at 344 (emphasis added).

Moreover,

‘“‘the communications media are entitled to act on

the assumption that public officials and public

’ By contrast, in areas of tort law such as assault, battery, or

false imprisonment, where no mandatory constitutional right may

be jeopardized, a constitutionally based bar on punitive damages

would seem to be unnecessary. See, ‘‘ Punitive Damages In Defa-

mation Actions Brought By Public Figures Chill First Amendment

Rights And Are Unconstitutional Unless Narrowly and Necessarily

Promoting Compelling State Interest’, 28 Vanderbilt L.Rev. 887

(1975) ; ‘Punitive Damages In Defamation Litigation: A Clear

And Present Danger To Freedom Of Speech’’, 64 Yale L. J. 610

(1955).

figures have voluntarily exposed themselves to in-

. ereased risk of injury from defamatory falsehood

concerning them. . . . Private individuals are not

only more vulnerable to injury than public officials

and public figures ; they are also more deserving

of recovery.”’ Id. at 345 (emphasis added).

Yet even though private individuals may be more

deserving of recovery than public figures,

“the States have no substantial interest in secur-

tng for plaintiffs such as this petitioner [i.e., pri-

vate figures] awards of money damages far in

excess of any actual injury... . We endorse the

strong and legitimate state interest in compen-

sating private individuals for injury to reputation.

But this countervailing state interest extends no

further than compensation for actual injury.’’ Id.

at 349 (emphasis added).

Given the more compelling interest in publication

involved herein—that of allowing unfettered public

discussion of the conduct of public officials and govern-

mental matters as opposed to private matters, Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975),

Mills v. Alabama, 384 U.S. 214, 218-219 (1966)—an

equally strong argument exists for limiting punitive

damage awards under the actual malice standard, at

least where a public official such as Adams is involved!

At present, the limitations upon a jury’s award of

punitive damages are too broad and vague to be any

real limitation at all. Oftentimes, as in the trial of the

case below, juries ‘‘award damages which reflect their

disdain for the publishing of an unpopular opinion,

rather than a realistic level of compensation for the

actual injury sustained’’, Taskett v. King, supra at 86;

see also, Reynolds v. Pegler, 123 F.Supp. 34 (S.D.N.Y.

1954). Courts in many jurisdictions therefore have

held that an award of punitive damages must bear a

‘‘reasonable relationship’’ to the actual damages as-

sessed. Yet, they recognize no fixed ratio by which to

determine the proper proportion between actual and

punitive damages. See ‘‘ Annotation: Excessiveness or

Inadequacy of Damages for Defamation’’, 35 ALR 2d

218, 255, §2; 1 Hanson, Libel. and Related Torts,

§ 167 (1969). In Florida, moreover, punitive damages

may be awarded even though the amount of actual

damages is neither found nor shown. Saunders Hard-

ware Five and Ten, Inc. v. Low, 307 So.2d 893 (Fa.

App. 1974). Such ‘‘untrammeled discretion’’, Davis v.

Hearst, 160 Cal. 143 (1911), in the award of punitive

damages in Florida libel cases clearly does not nar-

rowly and necessarily promote a particular state inter-

est in either affording Adams redress for injury to his

reputation, or in preventing a reoccurrence of Peti-

tioners’ ‘‘culpable’”’ conduct. See Maheu v. Hughes

Tool Co., supra; Farrar v. Tribune Pub. Co., supra.

Thus, without further guidance from this Court in this

area,

‘‘Tajlthough the New York Times rule provided

the publisher with greater protection at the thresh-

old of liability, it [cannot] cure the self-censorship

effect of punitive damages. Before speaking, the

publisher must still consider the risk of unlimited

recovery in the event the plaintiff satisfies the re-

quirement of actual malice.’’ Maheu, supra at 170.

Finally, the award of punitive damages against only

Cape Publications, Incorporated, compounds the im-

permissible and grossly inhibitory effect of the jury’s

verdict. As noted above, little or no evidence was intro-

duced at trial which would tend to show ‘‘actual mal-

ice” on the part of the editorial and managerial staff

41 .

of TODAY. Moreover, although the editorial staff had

great confidence in Newcome’s veracity—based upon

his prior record of thorough and authoritive investi-

gative reporting—they nevertheless conducted their

own independent review of the articles in question.

Those experienced and knowledgeable persons who

worked in positions of authority at TODAY, and who

were involved in the editing of the articles, therefore

properly and in good faith ‘‘assume[d] the truth of

facts contained in [Newcome’s] stories.’’ Walker v.

Colorado Springs Sun, Inc., 538 P.2d at 458 (Colo.),

cert. denied, 96 S.Ct. 469 (1975).

Yet the jury’s verdict for punitive damages—which

theoretically is intended to punish and to deter repeti-

tion of only the most egregiously tortious sort of con-

duct—was directed at Cape Publications, Inc., only,

and not at Defendants Baker or Newcome who, as em-

ployees of TODAY, were most directly involved in the

preparation and publication of the articles in question.

This, it is respectfully submitted, underscores the ca-

pricious nature of the entire judgment in this case—

both for punitive and compensatory damages. As noted

in Williams v. City of New York, 508 F.2d 356 at 360-

361 (4th Cir., 1974), quoting Mr. Justice Gray in Lake

Shore & Michigan S. Ry. v. Prentice, 147 U.S. 101,

107-108 (1893), in part as follows:

“Exemplary or punitive damages, being awarded,

not by way of compensation to the sufferer, but by

way of punishment to the offender, and as warning

to others, can only be awarded against one who has

participated in the offense. A principal therefore,

though of course liable to make compensation for

injuries done by his agent, within the scope of his

employment, cannot be held liable for exemplary

or punitive damages, merely by reason of wanton,

oppressive or malicious intent on the part of the

agent.

& * *

“‘No doubt a corporation, like a natural person,

may be held liable in exemplary or punitive dam-

ages for the act of an agent within the scope of his

employment, provided the criminal intent, neces-

sary to warrant the imposition of such damages,

is brought home to the corporation.”’ (emphasis

added).

Therefore, ‘‘unless the employer is himself guilty of

sometortious act (or omission) because his employee

has misbehaved, an award punishing the employer and

deterring him and others situated likewise (i.e., other

employers) makes no sense at all.’’ Williams v. City of

New York, supra at 360.

CONCLUSION

Petitioners strongly urge this Court to grant this

request that it assess anew the validity of the decision

below in light of New York Times v. Sullivan and sub-

sequent cases, ‘‘not [only] because their own rights of

free expression are violated, but because of a judicial

prediction or assumption that the very existence [of

such broadsweeping jury discretion in awarding puni-

tive damages in Florida] may cause others not before

the court to refrain from constitutionally protected

speech or expression.’’ Broadrick v. Oklahoma, 413

U.S. 601, 612 (1973).

Wherefore, it is respectfully prayed that a writ of

certiorari be granted in order to review the opinion

below of the Fourth District Court of Appeal of the

State of Florida and thereby determine whether the

evidence at trial constitutionally supports the judg-

—_-.— ——_- --- -— —- -— .

eer eng ee ———_

ment and award of damages against Petitioner, and

whether the present system in Florida, which permits

the assessment in defamation actions of unlimited and

wholly unpredictable damages, adequately protects the

very real First Amendment values at stake herein.

S. LinpsEy Ho.uanp, JR.

Crorron, HOLLAND, STARLING,

Harris & SEVERS

65 E. Nasa Boulevard

P. O. Box 459

Melbourne, Florida 32901

APPENDIX

APPENDIX A

Opinions Below

DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

CaPE PUBLICATIONS, Inc. et al., Appellants,

ad v.

Donald F. Apams, Appellee.

Carge Pvusuications, Inc., Appellant,

Vv.

Donald F. Apams et al., Appellees.

Nos. 74-1731, 74-1760

Aug. 27, 1976 -

Rehearing Denied October 1, 1976

S. Lindsey Holland, Jr., of Crofton, Holland, Starling,

Harris & Severs, P. A., Melbourne, for appellants.

Larry Klein and Cone, Wagner, Nugent, Johnson &

McKeown, P. A., West Palm Beach, for appellee-Donald

F. Adams.

Downey, Judge.

Appellee (Donald Adams) sued appellants in one count

for libel and several other defendants who are not involved

in this appeal (Sardella, Stone, and St. Pierre) in a second

count for conspiracy to libel. The trial court granted a

directed verdict for all the defendants as to the conspiracy

count. The jury returned a verdict on the libel count for

$114,000 compensatory damages against all the appellants

and $100,000 punitive damages solely against appellant,

Cape Publications, Inc.

Appellee was the Building Official of the City of Vero

Beach, Florida and Indian River County. Appellant New-

come was a reporter and bureau chief for a Brevard County

newspaper named Today, which was owned by the predeces-

sor of appellant Cape Publications, Inc. Appellant Buddy

Baker was the managing editor of Today. In the course of

his employment Newcome wrote several articles about ap-

pellee and the conduct of his office. Baker approved the

articles, and Cape Publications’ predecessor published

them. Two of the articles forming the primary basis for

the alleged libel essentially charge appellee with: a) solicit-

ing a construction supervisor (Bernard) for a $1000 bribe

and attempting to make Bernard return to appellee in cash

$150 which appellee had paid by check for three mirrors;

and b) attempting to persuade the Mayor of Indian River

Shores to pay appellee $2000 (plus $400 for appellee’s sec-

retary) annually for work for which appellee had already

been compensated. The article involving Bernard set forth

that both Bernard and appellee denied either of the re-

ported wrongful acts. But it nevertheless stated that Wil-

cox, Bernard’s supervisor, had told Today that Bernard

had in fact reported the two solicitations to Wilcox. The

article involving Miller, the Mayor of Indian River Shores,

set forth that Miller had stated that appellee had requested

the improper payments from him. Miller testified at trial

that he had denied the statements attributed to him and had

advised Newcome of the true facts by furnishing copies

of the town’s records or telling Newcome where he could

obtain them.

Thus, we have a newspaper and its employees charged

with libelling a public official. All parties agree that appel-

lee is a public official and that the rule announeed in New

York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11

L.Ed.2d 686 (1964), regarding the necessary quality of

proof applies in this case. Therefore, in order for appellee

to recover it was essential that he prove actual malice on the

part of appellants with convincing clarity. ‘‘ Actus] malice’

in the New York Times sense means that the material was

published with knowledge that it was false or with reckless

disregard of whether it was false or not. This court in the

recent case of Palm Beach Newspapers, Inc. v. Early, 334

So.2d 50 (Fla.4th DCA 1976), noted that the New York

Times case stated:

‘**The constitutional guarantees require, we think, a

federal rule that prohibits a public official from recov-

ering damages for a defamatory falsehood relating to

his official conduct unless he proves that the statement

was made with ‘‘actual malice’’—that is, with know]-

edge that it was false or with reckless disregard of

whether it was false or not.’ (376 U.S. at 279-80, 84

S.Ct. at 726)”’

Adverting now to the evidence adduced at trial, which

we must view in the light most favorable to the verdict,'

it is our considered opinion after reviewing the entire rec-

ord, as we must on appeal in a libel case involving a public

official,’ that the proof of actual malice was more than ade-

quate to meet the burden of convincing clarity.

The evidence, in brief, shows the folowing things. New-

come, St. Pierre, and Sardella were close friends. St. Pierre,

a coutractor, and appellee had a running feud stemming

from appellee’s having St. Pierre arrested for violating a

stop work order on a construction job. Sardella and New-

come knew this. St. Pierre told Newcome that a contractor

named Wilcox had told him and Sardella that appellee had

1 Alioto v. Cowles Communications, Inc., 519 F.2d 777, 780

(9th Cir. 1975), cert. denied 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.

2d 259; Mahnke v. Northwest Publications, Inc., 280 Minn. 328,

160 N.W.2d 1, 3-4 (1968).

* New York Times Co. v. Sullivan, supra.

solicited a bribe from Wilcox’s supervisor. Newcome talked

to Wilcox about this statement and on cross examination

Newcome admitted that Wilcox was evasive about the en-

tire matter. Wilcox testified that he had never made such a

statement to St. Pierre, Sardella, or Neweome, and that

Bernard had never made any such statement to him. New-

come then talked to Bernard, who denied that appellee had

solicited a bribe or that he had ever told Wilcox of such an

event.

Sardella told Newcome that Wilcox had told him that

appellee had purchased three mirrors from Wilcox on a con-

struction site with a $150 check and that later appellee ap-

proached Wilcox’s supervisor, Bernard, and demanded

that the $150 be returned to him in cash. Wilcox denied that

Bernard ever told him of this demand and denied he ever

made any such statement to Sardella. Newcome contacted

Bernard and the latter denied that any such demand had

been made or that he had ever so advised Wilcox.

Sardella told Newcome that Miller had stated that ap-

pellee asked Miller, the Mayor of Indian River Shores, to

personally pay him $2,000 per year and his secretary $400

for work they were doing for Indian River Shores for

which work they had already received compensation. Miller

denied making any such statement and said he had told

Newcome that there had been open discussions between ap-

pellee and Miller and the Town Council of Indian River

Shores relative to compensation for appellee for the extra

work appellee had been doing for the town. Miller either

gave Newcome copies of the relevant files or told him where

they could be obtained.

Newcome contacted Barclay Henderson, Executive Di-

rector of the Florida East Coast Chapter of the General

Contractors of America, to see if his organization might

take some action against appellee. Newcome met with Hen-

derson and gave him information about appellee. Hender-

son then conducted an investigation and met with various

contractors and appellee. Thereafter, Henderson advised

Newcome that he found no basis for any action against ap-

pellee and advised Newcome not to print any articles on the

matter.

Sardella introduced Newcome to another contractor

named DiBassie. During a meeting with DiBassie at which

Newcome was present, DiBassie did not accuse appellee of

any wrongdoing. He testified at trial that Newcome and

Sardella said they were going to get appellee and that they

were going to put him in jail.

The jury could properly conclude that every time New-

come went to the sources of the information concerning

alleged wrongdoing (Bernard and Miller, the only persons

with personal knowledge of the facts), they told Newcome

the statements were untrue. This did not happen with just

one of the events but with all three! In addition, Newcome

knew his source St. Pierre had a feud going with appellee,

so he was on notice as to his questionable credibility. Fi-

nally, DiBassie, who, acording to Today, accused appellee

of improper conduct, denied making any accusation. On the

other hand he testified Newcome and Sardella said they

were going to get appellee and put him in jail.

In the face of all those red flags flying, Newcome wrote

the articles complained of, imputing criminal conduct to

appellee. The editorial staff of the newspaper, after giv-

ing full consideration to their content and the possible

libellous implications arising therefrom, decided to print

the articles.

As we view the credible evidence which the jury had be-

fore it, there is clear and convincing support for a finding

that appellants exhibited a reckless disregard of whether

the charges were true or false, i.e., that they published the

articles with a high degree of awareness of the probable

falsity of the statements involved (Garrison v. Louisiana,

379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)) and with

serious doubt as to the truth of the publication (St. Amant

v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262

(1968) ).

Appellants posed eleven points on appeal. We have given

each serious consideration and find that they fail to demon-

strate reversible error.

Accordingly, the judgment appealed from in each of

these appeals is affirmed.

Wanpen, J., and McCauuey, James A., Associate Judge,

concur.

SUPREME COURT OF FLORIDA

Friday, June 24, 1977

Case No. 50,414

District Court or AppgaL, Fourtns Distetcr

74-1731

74-1760

Care Pus.uications, Inc.,

Buppy Baker and Duke Newcomg, Petitioners,

vs.

Donatp F. Avams, Respondent.

This cause having heretofore been submitted to the Court

on Petition for Writ of Certiorari, jurisdictional briefs

and portions of the record deemed necessary to reflect ju-

risdiction under Florida Appellate Rule 4.5 c (6), and it

appearing to the Court that it is without jurisdiction, it is

ordered that the Petition for Writ of Certiorari be and the

same is hereby denied.

Overton, C.J., Apxkins, Boyp, Encitanp and Harcuert,

JJ., concur.

A True Copy C

; ec: Hon. Emmett J. Comiskey,

Tuer: Clerk

Sid J. White Hon. Raymond C. Winstead, Jr.,

Clerk Supreme Court. Clerk

By: Dublin Causseau Hon. Tom Waddell, Jr., Judge

Deputy Clerk Hon. S. Lindsey Holland, Jr.

of Crofton, Holland,

Starling, Haris & Severs

Hon. Larry Klein

Cone, Owen, Wagner, Nugent

Johnson & McKeown

Excerpts from Trial Testimony

Testimony of Duke Newcome

[T-136] Now, were you getting information from Mr. St.

Pierre? Would Mr. St. Pierre give you information about

people that he had talked to, contractors? A. Yes, sir.

[T-137] Q. Sardella give you some names? A. In all

probability, yes, but I don’t recall specifically.

Q. Did he not give you some specific information about

what these people had told him? A. Yes, sir, I’m sure he

did. I hope you won’t ask me what and where, but we did

talk and exchange information.

Q. He told you about Roland Miller? A. I don’t know

where—if it’s him or Bernie St. Pierre.

Q. He told you about Wileox? A. No, I believe Bernie

St. Pierre told me about Wilcox.

Q. Could Mr. Sardella have told you and you just don’t

- remember? A. He could have, yes, sir.

[T-1056] Q. All right, sir. Now, the statement of Mr. Wil-

cox quoted in the newspaper which I have just mentioned

to the witness, St. Pierre, as to those statements; what

were your sourees? A. Mr. Wilcox confirmed to me—I

first discussed it with Mr. Sardella, or St. Pierre, and

learned what Mr. Wilcox had told them about the attempted

shakedown.

Q. Did you report accurately what they told you he said?

A. Yes, sir.

Q. All right, and later you saw Mr. Wilcox yourself? A.

Yes, sir.

Q. And what, if anything, did he confirm? A. He denied

that, that there had been an offer from his superintendent

to Mr. Adams of $500. He said [T-1057] he, he wanted to

make it perfectly clear and intended to make it clear with

Mr. Sardella, but he said there was request of a thousand

dollars from Mr. Adams.

Testimony of Duke Newcome

Q. And that had been reported to him by his superin-

tendent, Mr. Bernard? A. Yes, sir?

Q. Did he deny in any way having the conversation with

Mr. Sardella and Mr. St. Pierre in which he said essentially

the same thing? A. No, sir, he confirmed that clearly.

Q. Were these sources then yours, Sardella’s and St.

Pierre’s, the basis for your putting this in the article? A.

Yes, sir.

Q. What did you feel was the truth of the matter from

your investigation?

e @ >

[T-1057] Tue Wirwesss: Yes, sir. I had no reason to

[T-1058] doubt that Mr. Wilcox had. had this discussion

with Mr. Sardella and Mr. St. Pierre. Both, they told me

about it, then Mr. Wilcox confirmed it.

By Mr. Hotzianp:

Q. All right, sir, and what was your feeling then after

getting the denial from Bernard as to this which you

printed? A. I think that was pretty well covered when Mr.

Wilcox made such a strong point that his man, his super-

intendent had not made an offer of a bribe. That would be

a violation of the law, and when he, when he [T-1058]

wanted to get away from that part of it, and then Mr.

Bernard confirmed that he hadn’t made any such, I figure

Mr. Bernard didn’t want any part of it, just a distasteful

thing and something that he didn’t have any desire to get

involved in.

(T-1059] Q. Did Mr. Bernard’s denial cause you to ques-

tion Mr. Wilcox’ statement that Bernard had reported the

one thousand dollar suggestion to Mr. Adams? A. No, I

still believed Mr. Wilcox. We had a rather lengthy conver-

sation, and my conversation with Mr. Bernard must have

lasted all of two minutes. He just made a quick denial.

10a

Testimony of Duke Newcome

. He was reluctant to talk to you? A. Yes, sir.

Q. But Mr. Wilcox was not? A. That’s true.

Testimony of Donald Wilcox

([T-505] Q. Now, did you at that conversation tell Mr.

Sardella that Mr. Bernard had approached—that Mr. Ber-

nard had been approached by Mr. Adams and asked that

Mr. Adams pay him a thousand dollars as a bribe? Did you

tell Mr. Sardella that, that that’s what Mr. Bernard had

said? A. I don’t remember making any such statement

as to quoting Mr. Bernard that Mr. Adams had asked him

for a thousand dollars.

(T-506] Q. That’s clear in your mind? A. Yes, sir.

Testimony of Bernard C. St. Pierre

[T-1050] Q. Now, Mr. St. Pierre, you heard Mr. Wilcox

testify from the witness stand here, have you not? A. Yes,

sir.

Q. And I believe you also testified when he cross-

examined you, when Mr. Hazouri put you on as an adverse

party, I believe you testified that you accompanied, that

you were with Deputy Joe Sardella when Mr. Wileox made

statements that Mr. Newcome has testified to? A. Yes,

sir.

Q. Are you also familiar with the content, the statement

made in the news articles about and quoting Mr. Wilcox?

[T-1051] A. Yes, sir.

Q. Now, these statements quoting Mr. Wilcox, includ-

ing the statement that Bernard had reported to Wilcox that

it would take a thousand dollars paid to Adams personally,

that he was against having his firm involved in a payoff,

but offered to !ct enforcement officers observe his foreman

handing over marked bills and so on; now, were you present

when—you were pre- [T-1051] sent with Mr. Sardella in-

lla

Testimony of Bernard C. St. Pierre ~

terviewing Mr. Wilcox, did he make those statements? A.

Yes, sir.

Q. You heard him yourself? A. Yes, sir.

Testimony of Joseph Sardclla

([T-1104] Q. Mr. Sardella, you are the lieutenant and dep-

uty sheriff who previously testified and was formerly a

party in this case? A. Yes, sir.

Q. I remember asking you about your interview of Mr.

Donald Wilcox, and you testified about that—— A. Yes,

sir.

Q. —but I’m not sure I asked, and so I ask now, did you

interview—incidentally, I believe you testified you were

familiar with the news article quoting Wilcox, did you not?

{T-1104] A. Yes, sir, I read it here in the courtroom.

Q. And were the statements true and corect? A. Yes,

sir, they were.

& 8 e

Testimony of Duke Newcome

{[T-168}] Q. In other words, he [Mr. Bernard] said he

didn’t tell Mr. Wilcox that Mr. Adams had tried to make

a shakedown for a thousand dollars? A. That’s correct.

Q. And he didn’t—he denied that Mr. Adams approached

Mr. Bernard about the mirrors and asked for the money

back? A. That’s correct.

Q. There wasn’t any question about that denial, was

there? A. No, sir.

s 6 e

[T-169] Q. When you talked to him and he said, ‘‘No,’’

he made these denials, wasn’t that pretty significant to

you? A. Yes, sir.

12a

Testimony of Duke Newcome

Q. Did you feel that maybe it may be—might warrant

another meeting with Mr. Bernard or another meeting with

Mr. Wileox to find out who was telling the truth? [T-170]

A. No, I don’t think it was up to me to continued meet-

ing. I had statements from Mr. Wilcox that it had oecurred.

I had four from Mr. St. Pierre and Mr. Sardella, that he

had told the same thing to them on separate oceasions with-

in the presence of two people. He confirmed it to me and

then Bernard said it hadn’t happened.

I think three people was sufficient to make me—plus it

did, plus he was willing to go along with setting up a con-

trolled payoff and I couldn’t think of any reason why a

man of Mr. Wilcox’ position would be willing to go through

all of the trouble of a controlled payoff if he didn’t think it

would happen.

*. s «&

[T-172] Q. Now, before you printed that article, you

talked to Mr. Adams, didn’t you? A. Yes, sir.

Q. And didn’t he deny any such solicitation of a one

_ thousand dollar bribe from Mr. Wilcox’ foreman? A Yes,

sir.

{[T-173] Q. Didn’t he deny that he had asked for his hun-

dred and fifty dollars back after he paid for the mirrors?

A. Yes, sir.

Testimony of Joseph Sardella

. a SI

[T-394] Q. How about Mr. Wilcox’ story about the mir-

rors; did he tell you that Mr. Bernard had told him that

Mr. Adams had purchased the mirrors? A. Yes, sir.

Q. For a hundred and fifty dollars and wanted ['T-395]

them back, wanted a hundred and fifty dollars back? A.

Yes, he had paid for the mirrors with a check for $150, re-

turned the next day and asked him for the money back in

cash.

13a

Testimony of Joseph Sardella

Q. And he told you that? A. Yes, sir.

Q. No question in your mind about that? A. No, sir.

Q. Was Mr. St. Pierre present during this conversation,

too? A. That was all the same conversation.

a 6 *

[T-1104] Q. Now, turn to this Roland Miller——

. « @

([T-1105] Q. You know whoI mean? A. Yes, sir.

e @ *

Q. All right, would you relate to the jury the substance

of any interview you had with him prior to this publica-

tion of these articles? A. Yes, sir. I don’t recall the date,

but I contacted him along at his home, he was out in the

yard working with a colored gentleman doing some type of

work there, and when I arrived, he asked me to sit down

in a lawn chair with him and he proceeded to tell me about

Mr. Adams, that Mr. Adams had contacted him and had

complained that he had been working overtime hours doing

inspections on the John’s Island building, [T-1105] and

that Mr. Adams had asked him for a personal check in the

amount of $2,000 for himself, and another check in the

amount of $400 for his secretary, Mrs. Rymer.

Q. Did Mr. Miller tell you what his response to Mr.

Adams was, what he said to him about this? A. Yes, sir.

He said he refused to do that, and he in turn at a later date

contacted the City Manager, Mr. DuMars.

{T-1106] Q. Did he state whether or not, did he tell you

whether he told Mr. Adams what he thonght about this re-

quest of hist A. Yes, he thought it was a shakedown in

the form of a payoff.

[T-390] Q. Did you talk with Mr. Newcome at this time?

A. Yes, sir, I did.

Q. And he gave you information about Mr. Adams?

A. Yes, he gave me a list of names of people to contact

that he had already contacted.

14a

Testimony of Joseph Sardella

[T-391] Q. Did you dig up some other people’s names in

and of yourself? A. Yes, sir, I did.

Q. Did you get information from them? A. Yes, sir.

Q. Did you pass that on to Mr. Newcome? A. No, sir.

Q. You did not? A. I obtained a lot of information

that Duke didn’t find out and still doesn’t know about.

Q. You didn’t tell Newcome what Mr. Miller told yout

A. No, sir.

(T-393] Q. Now, did you talk—do you recall talking

Roland Miller? A. Yes, sir. " “3

Q. And is it your statement that Mr. Miller told you

that Mr. Adams was trying to shake down the City of

(T-394§ Indian River Shares for unjustified pay for un-

justified work? A. Yes, sir.

Q. He told you that? A. Yes, sir.

Q. Now, do you remember talking to Mr. Wilcox, did ‘he

tell you that Mr. Bernard, his employee, had told him that

Mr. Adams had attempted to solicit a one thousand dollar

bribe? A. Yes, sir.

Q. He told you that? A. Yes, sir.

Testimony of Conwie Bishop

(Identified as TODAY news reporter employed by Vero

Beach Press Journal at time of these events.)

[T-1015] Q. Do you know one Roland Miller, Mayor of

Indian River Shores? A. Yes, I do.

Q. Did you take part in a conversation with a Mr. Ro-

land Miller, Mayor of Indian River Shores, prior [T-1015]

to the publication of these articles concerning Donald

Adams in respect of the City of Indian River Shores? A.

Yes, I did.

Q. Who was present at this conversation, and where was

it? A. It was at the Patio Restaurant, and Roland Rogers,

15a

Testimony of Connie Bishop

a co-worker of mine at the Press Journal, and Mr. Miller.

Q. Does he still work for the Press Journal? A. Yes,

he does.

Q. And you and he were in the Patio? A. Yes.

Q. And how did Mr. Roland Miller join this group? A.

Well, Roland and I were just having lunch, and Mr. Miller

came in and just stopped by us and talked and asked us if

he could join us.

Q. Was anyone else present? A. Not at our table.

Q. What, if anything, did he say when he sat [T-1016]

downt A. He was just damn mad about something.

Q. Was he visibly upset? A. Yes.

[T-1016] Q. And did he join you? A. Yes, he did.

Q. All right, and what was he talking about? A. He

said he was mad at Donald Adams. He called him dirty

names and everything. See

Q. And what was this about, did he tell you? A. Yes,

he talked more to Roland Rogers than he did to me, and

he just said that, uh——

Q. Before he—let me ask you this: While he was talking

with you and using this strong language, did he say any-

thing about Mr. Adams? A. Yes.

Q. What did he say? A. He said, said that he was a, he

was a son-of-a-bitch.

Q. Son-of-a-bitch. Did he say why? A. ‘‘He is trying

to screw me up there,’’ talking about Indian River Shores.

Q. Meaning Indian River Shores? A. Uh-huh.

Q. Did he use any other words to describe what [T-1017]

he felt Mr.—what he said Mr. Adams was trying to do?

A. I don’t remember all of what he said. It’s been so long

I just remember the stronger things he said, but he was,

he was trying to bribe him.

e @ e

{T-1020] Q. State if you know whether the conversation

concerned performance of duties of this nature? A. Oh,

yes, it was, it was dealing with Indian River Shores and

him as Building Inspector.

16a

Testimony of Connie Bishop

Q. How long before publication of the articles in question

which were published in June of 1972, would that conver-

sation have taken place? A. It’s hard to say exactly. It

was probably a month of two, maybe three, but I didn’t

have any reason to remember.

Q. And you remembered it [the June 11, 1972 article]

in the newspaper, it tied together with the conversation

that you related? A. We knew that he had said he was

dissatisfied with Mr. Adams and accused him of wrong-

doing, so it was nothing new to us, and that’s why I re-

membered the conversation after that, and I mentioned it

to Mr. Newcome.

Cross-EXAMINATION

By Mr. Hazovurt:

[T-1023] Q. When did you have this conversation with

Duke Newcome that you told him what you just told us

today? A. It was sometime after a lot of the City, or

some people went to the City Commission and some said

he didn’t say that, a.d I made a joke about it and said

I know that he said it, because he said it to me.

Testimony of Duke Newcome

[T-1064] Q. What about Roland Miller and Indian River

Shores, was Roland Miller—was that a relaxed conversa-

tion or just describes the way Roland Miller reported to

you what you have printed here that he felt at the time that

Mr. Adams was requiring payment, that he shouldn’t? A.

Mr. Miller was on and off; he laughed about it for a while,

and then cussed for a while. He is the type of man, he is—

said—he used 2 number of curse [T-1065] words and said

that it wasn’t right for him trying to shake them down.

Q. Did he used the word ‘‘payola’’? A. He did.

17a

Testimony of Roland Miller

Q. Did he say he had talked to Mr. Adams along that

line? A. He said that Mr. Adams had approached him and

asked for $2,000 for himself and $400 for his secretary per

year for overtime work Indian River Shores was causing

him.

He said, ‘‘I told him, ‘Don, this is nothing but payola.’ ’’

{T-554] Q. No? So Mr. Sardella showed up at your ga-

rage one day? A. That’s right.

Q. And did he tell you why he was there? A. Yes.

Q. Can you tell me what he told you? A. He told me he

was investigating Don Adams.

Q. All right, sir, and did he discuss with you the ques-

tion of this matter, which is of public record, this letter and

contents? A. I told him that it was all on public record.

[T-555] Q. Did you tell Mr. Sardella that Mr. Adams

was trying to shake the City of Indian River Shores down

for work that he wasn’t—for money he wasn’t entitled to?

A. I did not. ,

Q. Did you tell him it was any form of payola? A. No,

sir.

e @

Testimony of Joseph Sardella

[T-395] Q. Okay. Now, did you introduce Mr. Newcome

to Mr. DiBassie at the Big Daddy’s Lounge! A. I don’t

believe so, but we did meet him there. -

Q. Did you talk about Mr. Adams? A. Yes, sir.

Q. Did he say that Mr. Adams was a dishonest build-

ing inspector? A. Yes.

Q. He did? Okay, did he say that Mr. Adams took pay-

offs? A. No, he didn’t say that, but he inferred it was a

rotten business and these things happen.

Q. Was that conversation in the presence of Mr. St.

Pierre, also, in addition to Mr. Newcome? [T-396] A. Well,

all I can say, Mr. St. Pierre was there. I’m not sure that

he was close enough that he heard the conversation. He was

with us at that time.

18a

Testimony of Joseph Sardella

Q. Three of you, plus Mr. DiBassie? A. Yes, sir.

Q. Did you make a statement that you were out to get

Mr. Adams? [T-396] A. I did not make that statement.

Q. Did Mr. Neweome make that statement? A. I didn’t

hear it.

Q. Mr. St. Pierre? A. If he did, I didn’t hear it.

Q. You are saying that you did not, and you don’t re-

member if they did or not? A. Correct.

Testimony of Duke Newcome

[T-155] Q. Well, Mr. Neweome, you are familiar with the

article which you did which is in evidence, ‘‘ ‘Rotten busi-

ness’ DiBassie charges’’? A. Yes, sir.

[T-155] Q. Did Mr. Sardella introduce you to Mr. Di-

Bassie? A. Yes, sir. :

Q. And did Mr. Sardella tell you that Mr. DiBassie had

indicated to him that he knew something about Mr. Adams,

that he, that he might be willing to talk to you about? A.

Yes, sir.

Q. And did you in fact talk to Mr. DiBassie? [T-156]

A. To a limited degree. It was mostly a conversation be-

tween Mr. Sardella and Mr. DiBassie.

Q. But you were privy to the conversation? A. Yes,

sir.

Q. And did Mr. DiBassie make any accusation about Mr.

Adams and his Building Department? A. Not direct.

(T-1055] Q. Now, Mr. Neweome, you have on cross-ex-

amination when you were placed on the stand as an ad-

verse party witness, when I had an opportunity to cross-

examine you, I was permitted to ask you about the various

subjects of these articles, and do you recall that? [T-1056]

A. Yes, sir, some of it.

Q. Now, taking these subjects here very briefly and very

19a

Testimony of Duke Newcome

quickly, Mr. Newcome, one by one here as to the statement

by Mr. DiBassie, about contracting in the Vero area, ‘‘rot-

ten’’—excuse me—‘‘goddamned business,’? would you re-

peat briefly your sources for that? Was that your——

(T-1056] A. Myself in the presence of Joe Sardella.

Testimony of Robert DiBassie

[T-568] Q. Have you had any reason to question his

{[Adams’] honesty and the way he handles himself in his

business? A. No.

* *

[T-568] Q. Had you contacted Mr. Sardella and asked

to meet you and discuss anything about the Building De-

partment? A. No, I didn’t. .

Q. Did you call Mr. Newcome and ask him to come dis-

cuss this? A. No.

Q. Have you contacted Mr. St. Pierre and asked [T-569]

him to discuss with you problems about the Building De-

partment? A. Definitely not.

Q. Now, Mr. DiBassie, did you have a discussion with

them at the Big Daddy’s Lounge on more than one occa-

sion, or are we speaking primarily about one occasion? A.

It may have been one, twice, three times; it definitely was

more than one. I can’t recall the exact number of times.

Q. Well, did you know Mr. Newcome was a newspaper

reporter at that time? A. At the time I met him?

Q. Yes. A. Yes, I did.

Q. Did you have any friendship with Mr. Newcome? A.

No, I don’t.

Q. Did you know Mr. Sardella prior to meeting there

or seeing you there at Big Daddy’s? A. Yes.

[T-569] Q. Is he an acquaintance or friend? A. Ac-

quaintance.

Q. Now, did Mr. Newcome begin to make inquiry of you

about your knowledge of the Building Department here in

Vero Beach? [T-570] A. Yes.

20a

Testimony of Robert DiBassie

[T-570] Q. Will you tell me what Mr. Newcome was ask-

ing you and/or telling you during this conversation? A.

It’s been a long time, I can’t recall exactly. Best of my

recollection, uh, Mr. Neweome was conducting an investi-

gation into the Building Department, and as I understand

it, there turned up a number of things and they were going

to take Don Adams to task and they asked me if I could

contribute anything at that time.

I told them I did not want to be involved. I had very

few dealings at that time with Don Adams as such as I was

just—my only actual dealings with the Building Depart-

ment at that time was driveways, patios, things of this na-

ture, very minor.

Q. And did they—did Mr. Newcome elaborate or Mr.

Sardella or Mr. St. Pierre elaborate on what they meant

when they said, ‘‘taking to task’’? [T-570] A. Well, yes,

in a way. They said they were going to get him, they had

some things on him, and put him in jail.

[T-571] Q. Well, now, did you encourage Mr. Newcome

by giving him information against Mr. Adams? A. I

wouldn’t give him any information.

Q. Did you give him any information? A. No.

Q. Did you give Mr. Sardella any information or encour-

age him on information that would be detrimental to Mr.

Adams? A. No, I didn’t give any information. I said,

‘‘Fine, if he’s on the take, getting money, go get him; you

have my wholehearted support.’’ Unfortunately, I couldn’t

give him anything. Z :

[T-573] Q. What I’m after, in discussing with you the

fact that they were investigating Mr. Adams, did Mr. St.

Pierre’s problem with Mr. Adams come up in the discus-

sion? A. Most definitely.

[T-575] Q. Now, did you in reference to Mr. Adams, did

you ever make the statement to Mr. Newcome that the

21a

Testimony of Robert DiBassie

Building Department of the City of Vero Beach was a—

pardon my language—rotton god-damned business and he

could put you out of business if you don’t play the game,

or something to that effect.

* .

([T-575] Tue Wrrness: No, I did not make that statement.

- . .

[T-577} Q. I believe you stated a moment ago that you

never contacted Mr. St. Pierre about any problem that you

yourself had or were having with the Building Depart-

ment? A. No, sir, that’s not true.

Q. I’m sorry, what is true about it? A. At the time that

this arose, and I, after speaking to these gentlemen, mean-

ing Mr. Newcome and Mr. Sardella, I at the time was hav-

ing a conflict with the Building Department, mainly Don

Adams, as in regards to a job I had on-the beach and when

these gentlemen had informed me that they had the goods

on Don and would put him to jail or put him in jail or put

him where he [T-577] belonged; my problem that I had at

the time, I did call St. Pierre with it and told him what it

was. I thought it was highly irregular; it’s a situation

that occurred.

Q. Situation that occurred to you? A. Yes, sir, and I

did contact St. Pierre at that time.

[T-578] Q. It is possible that your having seen these news

articles and the fact that they concerned St. Pierre and that

you had done, I presume, some subcontracting with him,

knew it, that you might have called him as a result of see-

ing these articles to tell him that you also had had a prob-

lem or were having a problem with Mr. Adams? A. Yes,

sir, that’s possible. I don’t recall the exact time.

Q. Is it possible that in this call you expresed sympathy

toward Mr. St. Pierre? A. Most definitely.

22a

Testimony of Robert DiBassie

Q. In the course of the time since then, have [T-579]

you had occasion to make other complaints to the City

concerning what you felt were improper treatment—what

was improper treatment of you by Mr. Adams? A. Yes,

sir.

. * .

{[T-580] Q. Did these include among other things putting

undue pressure on some builders and not others? [T-581]

A. I would say yes, definitely made the inference to that.

Q. You said that you remember a news article concern-

ing Mr. St. Pierre’s alleged Code violations; do you also

remember that later he was—he found it necessary to file

a suit to compel the Building Department to issue him the

order to proceed with construction.

[T-581] <A. Yes, sir, yes, I was aware of that.

Q. You remember that was also reported in the news-

papers? A. Yes, sir.

[T-583] Q. And you are still in the masonry business?

A. Never got out of it. I love it.

Q. So you still need Mr. Adams’ permits? [T-583] A.

Any place you go, you need permits.

Q. Would you agree with me, sir, to the basic propo-

sition that a building department can put a contractor out

of business? [T-584] A. No.

Q. You don’t think that’s true? A. No.

Q. You don’t think there is enough leeway? A. I think

when Bernie won his case in court and I think—I think

the court—it showed you have regress (sic) through the

court. |

I don’t feel that’s true, no. They could make it difficnli,

but they couldn’t put a man out of business.

23a

Testimony of Duke Newcome

Q.-And you remember, to the best of your recollection,

that you did not say to Mr. DiBassie that you were out to

get Mr. Adams? A. That is correct.

Q. And put him in jail if possible? A. I remember no

such statement.

Testimony of Shirley Burnett

[T-904] Q. Did you have occasion to see him from time to

time in Big Daddy’s Lounge? A. Very frequent.

Q. During the period of time in the first half [T-905] say

of the year 1972, was it Mr. DiBassie’s custom to come

into your lounge ond have a drink there?

[T-905] A. Yes, sir. ,

Q. And what was the frequency and extent of your ob-

servations of this Mr. DiBassie, how often and how much

did you see him? A. Uh, every Friday I would say. Some-

times on Tuesday afternoon, sometimes Thursday morning,

very often he was in Big Daddy’s Lounge.

Q. Mrs. Burnett, can you describe if you noticed any

particular manner of speech or conducting himself of Mr.

DiBassie?

. . *

(T-906] Q. Did you have an opportunity to observe his

use of language? A. Yes, sir.

Q. What was the extent of that opportunity that you had

to observe his use of language? A. Well, he used a lot of

obscene language in ordering drinks.

Q. First of all, did you have—how much observation did

you have, how much opportunity or chance did you have to

hear him talk? A. I hear everything that goes on in a

bar.

Q. And you were going to say something about his lan-

guage. A. Well, he used a lot of obscene words that I, I

would not like to repeat here. If I have to, I will.

24a

Testimony of Shirley Burnett

Q. I don’t—state whether he characteristically spoke

loud or soft in this connection? A. Very loud.

[T-907] Q. And used, he used a number of obscene words?

I will ask you if among these words that he used was the

word, excuse me for saying it, the word, ‘‘goddamn’’? A.

Yes, sir.

[T-907] Q. Now, Mrs. Burnett, have you heard him use

those words? A. I have.

Q. On how many occasions, if you know? More than one?

A. Yes, sir. ©

Q. Now, did you ever have an opportunity on occasions

when the place wasn’t so loud to observe him in conwersa-

tions concerning his work and activities and his working

in the masonry or whatever his business was in the City

of Vero Beach? A. When?

Q. Yes or no, did you have an opportunity to hear him

comment to the way it was working in Vero Beach? A.

Yes, sir.

Q. And did you hear such comments from him on more

than one occasion? A. Yes, sir.

Q. And would you please relate these comments and

characterize them? [T-908] A. Uh, well, he said that he

would get even with a lot of people. I didn’t know the type

of work he was in, but he said he wasn’t going to kisis any-

body’s ass to build in Vero Beach, but he didn’t intend to.

Q. In this connection, did you hear him talk about, talk

of the building business in Vero Beach? A. Just to the

fact that he didn’t want to, that he wouldn’t go along with

certain people and I don’t know names that he called, that

he wouldn’t go along with certain people on building in

Vero Beach. |

Q. Was that in the same conversation of kissimg like

you said? A. Yes, sir, right.

25a

Testimony of Virginia Rosalee Boso

Q. Ever work with the Building Department, City of

Vero Beach? A. Yes, sir.

(T-1081] Q. Over what period of time? A. Uh, a year,

from June, ’73, to June, ’74; it may have been May, but I

think it was in June.

Q. Do you know a gentleman by the name of Bob Di-

Bassie? A. Yes, sir.

Q. Was he one of the contractors that was in and out of

the Building Department for permits and other things that

contractors come into the Building Department for? A.

Frequently.

Q. Were you receptionist at that time? A. Yes, sir.

Q. As receptionist, were you in a position to observe

activities generally of the Building Department? [T-1082]

A. Uh—— |

Q. People came in and left and soon? A. Yes, sir.

Q. Now, did you notice any difference, Miss Bosso, in the

treatment of the Building Department of Mr. DiBassie, as

compared to any other small contractors of generally sim-

ilar activity?

[T-1082}] Q. Yes, or no, did you notice? A. Yes.

Q. All right, what was it that you observed that caused

you to give this——_ A. Well, in my opinion——

Q. What did you observe? A. Mr. DiBassie would come

in with a small plan, a garage, enclosure or something

similar to this, small plans, not necessarily a house, and

he would take it back to the office where the inspectors

were to have them approve it immediately for us in the

office, [T-1083] the girls, Mr. Heeley (phonetic) at the

time, and Mr. Thomas now, I believe, to write the permit

and have it out as soon as possible.

Q. Would he be able to get the permit quickly? A.

Generally. Quicker than the others.

26a

Testimony of Charles Reed

(Identified as a newspaper editor employed with TODAY

at time of pvblication of articles complained of.)

{T-988] Q. At that time, Mr. Reed, what experience, if

any, had you had in investigative reporting? A. I had

been in the newspaper business, at that time, about eight

years and the bulk of that had been in investigative report-

ing.

Q. Were you called upon to—incidentally, where do you

live, sir? A. I’m in Rochester, New York.

Q. All right, sir, prior to the publication of the articles

that are the subject of this suit on June 11th, 1972, did you

participate in staff meetings concerning these articles?

[T-988] A. Yes, I did.

Q. And who was present at these meetings, sir? A.

Duke Newsome, Buddy Baker, Bob Bentley, myself, and

you, Mr. Holland.

* e >

[T-990) Q. Did you, yourself, participate in these meet-

ings that involved Mr. Newcome? A. Yes, I did.

Q. And did you ask questions relating to matters that

you had noticed on these copies? A. Numerous questions,

[T-991}] Q. Mr. Reed, relate the nature of the checking

and questions that you and the other staff members went

through with Mr. Newcome in working on the preparation

of these articles? What concerns, if any, did you express

in these meetings? A. Well, the main thing that I ex-

pressed and goes along with all of the other stories that I

do of this nature, is the correctness of the information and

fairness to all parties,

Q. Among other things, did you, do you recall question-

ing Mr. Newcome about the statements and remarks made

in the Big Daddy’s bar by this gentleman who was errone-

27a

Testimony of Charles Reed

ously.called ‘‘Mr. LeBase’’? A. I don’t remember that,

sir.

Q. Using copy there to refresh your recollection you go

through and relate some of the items that you in particular

went into and questioned Mr. Newcome on in these staff

meetings. [T-992] A. Right. Some of this is strictly what

you call editing and making it read smoother-type thing,

where you change a word here and there.

Q. I’m not referring to that. [T-992] A. Right, and 1

have several times, to keep on here, I have written, ‘‘Did

you get sworn statements from people?’’

Q. All right, did you take that up with Mr. Newcome?

A. Yes, I did.

Q. Did you discuss his stories with him about the par-

ticular things that you wrote about it? A. I didn’t ex-

tensively. What I wanted to know, of course, ‘‘ Duke, you

say what happened, you know, and doés anybody else say

that? Who are your supporting witnesses?’’, this sort of

thing, and now sworn statements, you either can or can’t

get them; it depends.

Most people are hard enough to get to saying something

for a reporter. You have his statement, but wherever I put

that, it’s for corroborating evidence for your side, for

correctness.

Q. In these discussions, did Mr. Newcome relate to you

information about his sources? A. Yes, he did.

Q. And did you and others question him in detail [T-993]

about that? A. For many hours.

Q. And did you make suggestions as to additional things

he should do? A. Additional things he should. do, and

also things that should be deleted from the copy.

Q. Does the copy reflect that? A. I’m sure it does. Yes,

particularly this one, I believe.

Q. A line all the way through a paragraph, that means

some just taken out? A. Duke really didn’t have any

contact to go with the story, and they were deleted.

28a

Testimony of Charles Reed

Q. And in these final meetings with all of these people

together, did the staff reach a point of approval of the

articles? A. Yes, that is correct.

Q. And what were your feelings at that time of the ap-

proval of these articles after full discussion as to the re-

liability of the information and its truthfulness? A. I was

satisfied that the articles were accurate, fair, ready to be

printed.

(T-993] Q. I'll ask you if you recall how many occasions

Mr. Newcome was called upon to come up to—did these

[T-994] meetings in Cocoa? A. Yes, they did.

Q. And can you state approximately how many times

Mr. Newcome was required to come up to meet with you

or other members of the staff about these articles? A. I

remember two specific times when he met with at least

four or five for long periods of time when we helped Duke

and went over and over them. There were other times

when Duke came up and talked to us about what was going

on.

Q. Discussed the articles? A. Yes, that is correct.

Q. And I believe you already testified to that, that I was

present as attorney? A. Right.

Q. And I’ll ask you whether I also questioned Mr. New-

come about these articles and went into them? A. Very

extensively.

Q. And whether after all these meetings and the review

sessions, whether my approval as attorney was given?

[T-994] A. Yes, we asked for it and you said, ‘‘Yes.’’

Q. All right, sir, and now was Mr. Bentley there? A.

Yes, he was.

[T-995] Q. And what was his position with the news-

paper? A. Bob Bentley was editor at the time, he was the

top editor of the paper.

Q. And in the discussions concerning whether to keep

or delete something, or to change something, who had the

final word? A. Mr. Bentley.

29a

Testimony of Charles Reed

Q. All right, sir, and who else participated? A. Buddy

Baker, myself, you, Duke.

Q. Did I advise Mr. Bentley on those occasions? A.

Yes, you did. I recognized his handwriting on this copy.

Q. Whose, Bentley’s? A. Yes.

Q. Mr. Reed, did these copies here, are they the final

form of the articles in question? A. No, sir.

[T-995] Q. Who at the news desk would do the final

editing in this regard? A. Well, the editor, Mr. Bentley,

would have final say-so. I take it the news editor, who was

Mr. Edward Frank, was the last man that it went through

on the desk as far as putting it into the paper.

Q. The final form, insofar as the substance of the final

form, agree with the final product approved [T-996] at

those staff meetings? A. That’s correct.

-Q. Now, you are presently engaged in investigative

work? A. I’m chief of the investigative team for the

Rochester newspapers.

[T-996] Q. Mr. Reed, after this series of meetings, were

you satisfied as to the extent of the investigation which

led up and to the final product of these articles. A. Yes,

sir, I was satisfied, or I would not have given my approval.

[T-996] Q. Did you seriously consider that question? A.

Yes, sir. Yes, sir, I stake my reputation on it.

Q. Do you believe the final product of this story—you

have stated that you believed it to be true, did you believe

it to be fair and complete and accurate? [T-997] A. Yes, sir.

Mr. Hotianp: No further questions.

e «e oe

Cross-Examination By Counset For PLaIntirF

[T-997] Now, Mr. Reed, tell us about your background in

journalism. A. Graduated from the University of Florida

30a

Testimony of Charles Reed

College of Journalism in 1965. I was named one of seven

outstanding journalism students.

[T-999] Q. So again, you had to rely solely on what

Mr. Newcome told you; is that correct? A. And I believe

also at the same time Mr. Sardella had some information.

[T-1006] Q. As to those matters in which you had, on

which you had made these marks concerning sworn state-

ments, would you relate what matters those were, sir, where

you had questions perhaps of Mr. Newcome? A. Yes, sir.

Q. Starting with the first one, what was that? A. ‘‘Two

electrical contractors told Today in the presence of wit-

neses they have been loaning money for years to City

Electrical Inspector Clyde Holtzclaw, an employee of

Adams, to avoid harrassment from his department.”’

Q. Now, did you diseuss this and the sources for this

subject with Mr. Newcome? A. Yes, sir.

Q. Now, after your discussions, were you satisfied that

he had sufficient sources to that statement? A. Yes, sir.

Q. Proceed on to the next case of what you wanted to

check into in sources. Incidentally, among these discussions,

do you recall Mr. Newcome reporting his interview with

Holtzclaw himself about this matter? A. Yes.

Q. And that Holtzclaw admitted this? A. Yes.

[T-1007] ‘‘Sources told Today that Carl ‘Speedy’ Arnold,

a foreman in the Water Department, stole City materials,

worked private contracting jobs on city time, used city

equipment and materials for private work, and that short-

ages in city materials were being concealed by the utilities

distribution supervisor.’’

Q. Now, did-you diseuss sources on this part with Mr.

Newcome? A. That is correct.

Q. And that you were satisfied with his sources? A.

Yes, sir.

3la .

Deposition Testimony of Donald F. Adams

(T-1078] **Question, you mentioned another letter con-

cerning comments, I believe they were comments favorable

to you in the contracting field?

Answer, No, I said a derogatory letter, derogatory let-

ters.

Question, That you received?

Answer, Yes, sir, before this publication and after this

[T-1079] publication.’’

Testimony of William Hawkins

Q. All right, sir, before June of 1972, did you have

knowledge of his reputation among such people, people in

the trade, for his expertise and ability in the performance

of his duties as a building official? A. Yes.

Q. And was that reputation good or bad? A. It was

bad, I guess you would say.

Q. Do you have knowledge with respect to his reputation

at that time for fairness in the performance of such duties,

yes or no? Do you have knowledge of such reputation as

to whether he was fair and consistent and evenhanded?

Q. Do you have knowledge of this kind of reputation for

his fairness in the performance of his duties? A. Yes, sir.

Q. And was that reputation good or bad? A. Well, I

guess you would say it was bad.

Testimony of Mr. Carl Hedin

{[T-943] Q. At the time of the publication of these ar-

ticles and before they were published, were you aware of

32a

Testimony of Mr. Carl Hedin

Mr. Adams’ reputation among builders and in the build-

ing trade in the performance of his duties as Building

Official? A. Yes, sir.

Q. And what was that: Good or bad? A. I would say

bad.

Testimony of C. Reed Knight

[T-915] Q. Do you know the Plaintiff, you know the

Plaintiff, Mr. Adams here? A. Yes, I do.

Q. Does your business include a packing house and

quarters for people to live in and other types of construc-

tion matters? A. Yes, sir, it does.

Q. And in the course of your activities as you say as a

farmer, have you had occasion to build numbers [T-916] of

houses? A. Yes, I think possibly since the war, probably

built near a hundred houses and duplexes.

Q. All right, in your work and contracting work, have

you had experiences with the Building Department in

which the regulations were applied in ways that you your-

self contested? A. Yes, in, I have in minor ways. It seems

like is my argument, it seems like it used to be a dual

regulation, but I was informed it was not a dual regula-

tion, it was a dual enforcement, and I have to agree with

that.

[T-923] Q. In your work of your own places that you

have had to build or tear down, have you been involved in

controversy yourself with the Building Department? A.

Yes, I have.

33a

Testimony of C. Reed Knight

Q. And has it ever been necessary for you, yourself, to

stand up for your own rights and question the Building

Department? A. Yes, in one. In one instance, yes, sir, and

then another instance I built buildings and put up my in-

spection card and it’s never been inspected nor initialed

or stamped.

Q. What was the instance where you did have [T-924]

difficulty? A. Uh, let’s see. One was where I was—some

buildings were condemned, or the Building Department

condemned some buildings as a fire hazard.

Q. And did you check that out to see whether or not

they were fire hazards? A. Yes.

Q. Did you have the Fire Marshal—— [T-924] A. Yes,

sir, the Fire Marshal checked it out, and there is no fire

hazard. ;

Q. Did you tear them down? A. Not yet.

Q. How long ago was that? A. Possibly two years.

[T-925] Q. Mr. Knight, prior to June of 1972, did you

have knowledge of the reputation of Mr. Adams for fair-

ness in the performance of his duties as Building Official,

yes orno? A. Yes, I think that I have been there and——

Q. What was that reputation, good or bad? A. He

didn’t have a good reputation. |

Q. Would you explain that, please, sir? A. Well, I

think it’s like a lot of enforcing officers, they can’t carry

a good reputation, maybe for the line of their duty, but his

—he would pick up the biggest opposition, it would be that

dual enforcement. It would run hot and cold. Today you

would have to have so and so, and tomorrow you wouldn’t

have to have it.

Q. You refer that to dual enforcement? A. I would call

it dual enforcement.

[T-925] Q. Is this between people as between types of

enforcement? A. Is—state that again.

34a

Testimony of C. Reed Knight

Q. As between builders and contractors, as well {T-926]

as between enforcement at different times? A. Oh, yes, I

would.

Q. Would this include conduct having the appearance of

favoritism? A. It would have that appearance.

Testimony of Robert E. Stone

[T-601] Q. Now, you then approached this matter, would

it be fair to say, strictly an attorney-client relationship,

representing your client vis-a-vis City Prosecutor City

Attorney and Building Inspector? A. I was representing

Mr. St. Pierre on two matters: Criminal charges, and he

wanted to continue that house.

Q. And that’s how you got involved, that’s the [T-602]

way you approached it? A. Yes, sir.

{T-609] Q. Now, was Mr. St. Pierre pretty upset about

this whole matter? A. Yes, sir, I would say he was upset.

Q. Seemed to be getting pretty emotionaily involved?

A. I wouldn’t say ‘‘emotionally involved.’’ I think Mr. St.

Pierre is a hardworking man, and he wanted to get that

house built and that was his main concern and he was

upset about it.

[T-611] Q. Didn’t Mr. Adams say yes, he could file an

affidavit, but will he make it an unlimited protection or——

A. I don’t think he said ‘‘unlimited.’’ I think he said there

couldn’t be any time limit in the affidavit [T-612] itself. In

other words, the affidavit couldn’t pin it down to a period

of years or a period of time.

Q. Didn’t he want a density report, toof A. Not in

connection with the affidavit. My understand was that if

the affidavit was given, that it would hold the City free and

35a

Testimony of Robert E. Stone

clear of any responsibility, and that Mr. St. Pierre would

state in the affidavit that he had in fact compacted the soil

underneath the slab and that he had in fact complied with

the Southern Standard Building Code, that that would be

acceptable’ and he could continue with the building.

Q. Could there have been a misunderstanding or ambign-

ity as to what was supposed to be furnished? A. My

understanding was, the affidavit was all that was required.

[T-614] Q. Okay, and then he did file the affidavit which

you thought was sufficient; is that correct? A. Yes, sir.

[T-614] Q. You did question, however, the fact that Mr.

[T-615] Adams wanted the man to plead guilty on one of

these charges before he could proceed building the house?

A. I certainly did. )

* 7

[T-617] Q. The mandamus case was tried before the

criminal case? A. No, sir, the criminal trial was first.

Q. That was the mandamus case that the tapes were put

in evidence? [T-618] A. Yes.

Q. And became public records; is that correct? A. Cor-

rect.

. * o

[T-618] Q. Did the charges of Code ‘violations involve

criminal punishment, possibility of fine or imprisonment?

A. As I recall it, the Code provided that there could be a

fine of $500 or sixty days in jail.

[T-619] Q. As to the Code, Southern Standard Building

Code, among other provisions, did it state that contractors

convicted of violations would lose their license? A. The

Southern Standard Building Code did not.

Q. But the municipal ordinance did? A. The municipal

ordinance did, yes.

36a

Testimony of Robert E. Stone

Q. Municipal ordinance of Vero Beach? A. Yes.

[T-619] Q. Did you attempt to explain to Mr. Adams that

the criminal case was one thing and the administrative

problem of proceeding with the house was a separate

[T-620] thing? A. Yes, sir, I discussed that with him,

yes, sir, I did.

Article from Today newspaper of Brevard County. Florida

Sunday June 11, 1972

‘BLACKLISTED’ VERO CONTRACTORS

CLAIM SHAKEDOWNS, HARASSMENT

By Duxe Newoome

TODAY Staff Writer

Vero Bracu—In the building department of the City of

Vero Beach, ‘‘You either play the game or you’re out of

business.’’

That’s the way one local contractor laments what he

calls ‘‘a rotten goddam business’’ involving allegations of

shakedowns and harassment at City Hall.

Other allegations point to misfeasance in the City of

Vero Beach water department.

e One contractor told TODAY that Donald F. Adams,

director of the City-County Building Department attempted

to shake his superintendent down for $1,000.

e The mayor of Indian River Shores told TODAY that

Adams attempted to persuade the mayor to write a per-

sonal check to Adams each year for $2,000 and another for

$400 to Adams’ secretary for ‘‘extra work’’ which town

building inspections caused Adams—work Adams was al-

ready being paid for.

37a

@ Two electrical contractors told TODAY in the presence

of witnesses they have been ‘‘loaning’’ money for years

to City Electrical Inspector Clyde Holtzclaw, an employee

of Adams, to avoid harassment from his department. One

said the inspector also has taken material from his busi-

ness, without paying for it, and used the material on a

private job.

Top city officials have long been aware of problems with-

in various departments but little remedial action has been

taken.

TODAY advised a Vero Beach city councilman and the

city manager one year ago of alleged use of city materials

on private jobs by city superintendent of Water Distribu-

tion Carl ‘‘Speedy’’ Arnold.

_ John DuMars, city manager and Alfred Fletcher, city

councilman, were given names of persons who reportedly

witnessed Arnold taking city-owned materials for use on

private jobs Arnold had contracted. A memo to Arnold’s

boss, Frank Phillips, cautioning against this practice and

urging tighter inventory control was the only action today.

TODAY’s investigation began approximately one year

ago following a grand jury’s report of irregularities with-

in the city electric department. This led to alleged irregu-

larities in the city building and water departments.

Sources told TODAY that Arnold, a superintendent in

the water department, took city materials, worked private

contracting jobs on city time, used city equipment and ma-

terials for private work, and that shortages in city materials

were being concealed by the utilities distribution super-

intendent.

TODAY took its information to City Manager DuMars

and asked for an investigation.

The result was a strongly-worded memorandum from

DuMars to Utilities Distribution Superintendent Frank

38a

Phillips reminding him that the superintendent (Arnold)

was instructed several years ago to perform no contrac-

tual work within the city limits of Vero Beach or outside

the city when it involved the city water system. The mem-

orandum stated it would be better for all conce:rned if

Arnold refrained from all contractual] work.

He also ordered steps taken to tighten control of city

materials.

Arnold has been seen by city employees using second-

hand materials, such as pipes and fittings, on private jobs,

materials which were dug up from city streets amd ordi-

narily returned to the city’s supply shop, witnesses say.

Arnold denied this when confronted by TODAY.

In addition to reports of the use of city equipment and

materials, a memo from the city manager indicatted sus-

picion that private contractors were ‘‘horrowing’’ city ma-

terials that were not being returned.

Joe Conway, then warehouseman for the city, told TO-

DAY that Frank Phillips, utilities distribution superin-

tendent, furnished him with job numbers of city jprojects

completed earlier to which he was instructed to charge off

missing material.

Phillips told TODAY it was customary to adjust some

inventory but he does not remember instructing Conway

to charge off missing material.

Louis Dellerman, of Ace Plumbing Co., told TOD)AY that

in recent years, he has lost approximately 20 jobs; to Arn-

old, who submitted lower bids.

On several occasions, Dellerman said Arnold has at-

tempted to sell him new and used pipe, lead and gate

valves, which the plumber refused to purchase.. Arnold

denied the allegation.

39a

Karl Hedin, general contractor, told TODAY he inde-

pendently hired a consulting engineer about two years ago

to draw plans for a sewer main on a project at 935 East

Causeway Blvd.

Upon completion of the job, Hedin was advised by the

engineer, James Beindorf, that a pressure test must be

made on the pipe. The engineer contacted Arnold to make

the test.

Hedin said Arnold and John Sellers, now manager of

water and sewage systems, worked several nights making

the test, using a piece of equipment Arnold had loaded on

his jeep, which Hedin said Arnold told him was city equip-

ment.

The contractor said he was billed by Beindorf for $225

for the test. The bill for payment was marked, in paren-

theses, as payment to Carl Arnold.

Sellers told TODAY he worked with Arnold two nights

on the project but no city equipment was used.

Arnold first denied he worked on the project then said

he ‘‘helped run it down.’’ He denied using any city equip-

ment and said he was on city time and was paid overtime

by the city, reeeiving no money from Hedin.

Reminded by Sellers, who was present for the interview,

that he was not on city time, Arnold recalled receiving

$12.50 for the work. He remembered the money was paid

to Sellers and Sellers paid Arnold.

A copy of the bill for the work shows Beindorf billed

Hedin for the pressure tests. The bill shows payment to

Carl Arnold of $225 for pressure tests on the sewer line.

‘Rotten Business,’ LeBase Charges

Bob LeBase, Vero Beach drywall contractor, describes

construction work as ‘‘a rotten goddamn business.”’’

| 40a

City building inspectors can put a man out of business if

they wish, the contractor said.

Don Wilcox, executive vice president and project direc-

tor for the Village Spires Condominium on the beach, told

TODAY that Donald F. Adams, city-county building and

zoning director of Vero Beach, attempted a $1,000 shake-

down on one of Wilcox’ projects.

Wilcox said Adams frequently criticized minor items in

the Village Spires project, including a demand to replace

all the doors.

Adams insisted fire rated doors were required inside the

two buildings, which would have cost an additional $30,000.

Wilcox said he argued Adams’ interpretation of the code

was incorrect and that inside doors did not have to be fire

rated.

Wilcox walked away from Adams, but quoted his fore-

man, Art Bernard, as saying he asked Adams what they

would have to do to keep the project moving.

Bernard told Wilcox it would take $1,000 paid to Adams

personally, Wilcox told TODAY.

Wilcox said he was against his firm becoming involved

in a payoff and offered to let law enforcement officers ob-

serve his foreman handing over marked bills to the city

official for the purpose of making an arrest. However, his

superiors and attorneys preferred not to be associated with

The contractor said he checked with officials in major

Code Congress in Alabama and confirmed his interpreta-

tion that fire rated doors were not required inside the

building.

Adams denied all Wilcox’ accusations.

4la

The building official said he had no discussion of money

with Bernard, who confirmed Adams’ statement.

Adams said he never asked for nor was offered money

and resented the implication.

He said he frequently held up the Village Spires project

for things he found wrong. Bernard confirmed this saying

Adams had required ‘‘one step above’’ standard require-

ments in the building.

Adams said he obtained the interpretation from the

Southern Standard Building Code Congress which showed

he was corect in his interpretation. However, the letter

from the congress disclosed he had authority to allow non-

fire rated doors. He said he did allow this ‘‘at no cost.’’

On another recent occasion Wilcox said Adams expressed

interest in three smoked mirrors in the Village Spires.

Adams inquired as to the cost and was told by Bernard the

contractor paid $150 and if Adams wanted them he could

purchase them at that price.

Adams gave a personal check for $150 to Bernard and

took the mirrors. The next day he returned and told Ber-

nard he wanted his $150 refunded in cash. He did not re-

turn the mirrors.

Bernard gave Adams the $150, according to Wilcox.

Adams admitted purchasing the mirrors from Bernard

with a personal check but denied he returned the next day

for his money to be refunded in cash. Bernard confirmed

Adams’ statement.

A letter on file in the city hall shows Adams approached

the mayor of Indian River Shores several months ago ask-

ing that $2,000 be paid to Adams and $400 to his secretary

every year.

Adams told Mayor Roland Miller the large amount of

construction in the town at John’s Island Development was

42a

causing both him and his secretary a lot of overtime work.

He offered to furnish Miller a letter explaining the extra

work and justifying the payment.

Adams’ salary of $15,110 a year is paid by the city and

county to cover work throughout the county. In addition,

residents or contractors of Indian River Shores pay the

City of Vero Beach for each inspection made there.

Last year total payments reached about $16,000. This

year the payments are expected to total about $25,000.

The town council of Indian River Shores balked at

Adams’ request for funds and Mayor Miller wrote Vero

Beach City Manager DuMors saying if the city decided

overtime payment was warranted he would submit that tu

his council.

Adams denied to TODAY that he approached Mayor

Miller directly for the money. He said he went through

DuMars, in writing, with his request.

Adams said Miller called him and informed him of a

pending meeting of the town council and suggested if he

had anything to bring before the council he could do so at

the meeting.

Adams said the City of Vero Beach is not being reim-

bursed ‘‘one dime’’ for enforcement of zoning there, which

Adams is responsible for. He said he told Miller he thought

it only fair if the town put something in its budget for

Adams.

Adams said DuMars read the letter and told him it ap-

peared Adams was asking for a personal reimbursement.

He said he rewrote the letter and a copy was sent by

DuMars to Miller.

Adams said he later learned Miller ‘‘went around telling

people I was putting a gun to his head,’’ to get the money.

43a

’Favoritism’, Hawkins Claims

William Hawkins, owner of Hawkins Plumbing Co., ac-

cuses Adams of showing favoritism to certain Vero Beach

contractors.

Hawkins told TODAY he visited a construction site at

14th Avenue and 16th Street owned by Frank Zore and

noticed P.V.C. (plastic) pipe was being used for plumbing

in the multi-unit building. The use of plastic pipe was a

violation of the city building code.

Hawkins said he questioned City Plumbing Inspector

Oscar Teat to learn if the building code had been changed

to allow the P.V.C. Teat said it had not, according to

Hawkins, and he had rejected the Zore Building because of

the pipe. Teat said Adams had given his personal approval

of the Zore project, Hawkins quoted the inspector.

Hawkins said he inquired of Adems who said there had

been a misunderstanding. Hawkins proceeded to install

plumbing in two more buildings he had contracted, using

cast iron and copper, believing something would be done to

correct the Zore building.

He said he later checked the building again and found

walls being erected with the plastic pipe still in place.

Hawkins then installed P.V.C. in his next job and the

project was rejected by Teat. Hawkins said he asked for a

personal inspection by Adams, who also rejected the project

and ordered the plastic pipe removed.

Hawkins said he refused and told the city official he

would remove his plastic pipe when that same material was

removed from the Zore Building. He said he asked Adams

why he permitted its use by Zore and was told that was be-

tween Adams and Zore.

Hawkins said his project was approved by Adams after

several days delay. The building code has since been

changed to permit P.V.C.

44a

Adams recalled his confrontation with Hawkins and said

the plumber was attempting deliberately to force him into

a showdown.

He explained he approved the Zore building because he

had recently attended a meeting of the Southern Standard

Building Code Congress and learned changes in the code

were planned, including the use of P.V.C.

He said he rejected Hawkins’ building because the

plumber had used P.V.C. also beneath the slab. The Zorc

building plumbing had cast iron beneath the slab, Adams

said.

later he told TODAY he approved Hawkins’ building

because he decided to allow all plumbers to use P.V.C. as

Hawkins had done.

Adams said it is a customary procedure of his to permit

such changes but when he does he makes the change effec-

tive for all contractors.

Louis Dellerman, owner of Ace Plumbing, Inc., also op-

posed Adams allowing Zore to use the P.V.C.

Dellerman told TODAY the City Examining Board, of

which he is a member, accepted P.V.C. for use in the city

more than a year ago. Adams, however, is the final au-

thority on what is allowed, Dellerman said.

When Dellerman learned of the P.V.C. in the Zore Build-

ing, he said he, as a member of the examining board, in-

structed Adams not to give final inspection on the project.

The plumber said he was told sharply by Adams he had

nothing to do with such inspections and the project was

approved.

45a

Some Builders Laud Adams

Many area contractors say they have experienced no

difficulty with Adams or his inspectors. Some commend

the official as being thorough in his inspections and say

he requires quality building.

Others maintain Adams has a different building code or

set of rules for different contractors.

Bernie St. Pierre, a Vero Beach contractor for 12 years,

complains he must pour a continuous footer around all his

buildings. This is not a requirement for all contractors, he

said.

St. Pierre also said he is the only contractor in the city

required to install 20-foot culverts beneath driveways to

homes he builds. |

Most contractors use pipe in 14-foot lengths, at a cost of

$3.31 per foot.

St. Pierre’s claim is supported by C. G. ‘‘Doc’’ Edwards,

owner of King’s Ideal Supply, who stocks the metal cul-

verts. Edwards said St. Pierre is the only one to his knowl-

edge that purchases the extra length pipe.

St. Pierre said he installed three 14-foot pipes at drive-

ways on 28th Avenue where he was building homes before

he was ordered by the city to begin using 20-foot lengths.

He said he questioned city employee Don Smoke at the

site why others were permitted to use the shorter, cheaper

pipe and was advised if he complained to higher city offi-

cials he would be forced to tear out the first three he had

installed.

Edwards said two homes were already built in the 28th

Avenue Subdivision by other contractors where St. Pierre

built new houses. Their driveway entrances blocked the

flow of surface water when ilie development was completed

jellies

46a

and they were required to install culverts. They were per-

mitted to nse 14-foot lengths.

J. Lewis Green, director of the city Public Works De-

partment, denied he has any such requirements for culvert

installation. He told TODAY his department encourages

everyone to use a culvert of sufficient length to avoid a

vehicle driving off the end into the swale ditch.

He said he would not try to impose two standards on

contractors.

2 Contractors Tell of ‘Loans’

Paying off building inspection officials is not an uncom-

mon practice in many cities, contractors say, but it failed

to serve any purpose for two Vero Beach contractors.

Hans Barker, co-owner of Indian River Electric Co., said

he has been ‘‘loaning’’ money to City Electrical Inspector

Clyde Holtzclaw for years, without being repaid, and is still

being harassed on his jobs.

Holtzclaw, who worked for Barker as an electrician prior

to joining the city about six years ago, approached Barker

for a loan of $175 shortly after starting work with the city.

Barker said he gave the inspector the money not asking

that it be repaid and not expecting it to be. Later Holtz-

claw borrowed another $125, which Barker asked to be re-

turned. He said it was repaid.

Since that time, the inspector ‘‘borrowed’’ smaller

amounts, ranging from $20 to $50.

Barker said when he gave the inspector the money he

did so believing it was a payoff to keep Holtzclaw from giv-

ing him trouble on the job. The inspector never offered to

return any of the borrowed money but continued coming

back for more, Barker said.

47a

In recent months, Barker said Holtzclaw began narass-

ment on jobs by Barker’s firm, which Barker said he be-

lieves was an attempt to make future ‘‘loans’’ more easy

to obtain, using the harassment as an example of what could

take place.

The action has an opposite effect on Barker, who said he

shut off the loans March 23. Since then, Barker said his

partner and co-owner, Paul Wright, who does most of the

house wiring, experienced a sharp increase in the inspec-

tor’s harassment on jobs.

Wright told TODAY he also ‘‘loaned’’ money to Holtz-

claw when he operated Anchor Electric Co. prior to form-

ing a partnership with Barker.

Wright said he loaned money to the inspector several

times over a period of years, in amounts ranging from $5

to $75, and was repaid only once.

In addition, Wright said Holtzclaw moonlighted (worked

private jobs after city working hours) for some time after

joining the city. He said Holtzclaw would come to his shop

and pick up electrical supplies, such as wiring, to install on

the private jobs, never offering to pay for the material.

Holtzclaw admitted borrowing money from Barker,

Wright and Jackson Electric Co. and White Electric Co.

He said he had paid back a portion of the money he bor-

rowed from Barker but could not recall if he had repaid

Wright. He denied he ever moonlighted or took material

from Wright, other than a light bulb or some small item

for his personal use.

Some Can Snub Building Rules

Some contractors are permitted to ignore city building

department rules while others must follow a strict set of

regulations. Wright said he has had jobs rejected because

the weatherhead, or connection point where electric wires

wee é

48a

enter a building, was not off the ground. A house now

under conateuction on sere Isle has a weatherhead that

can be reached from the ground. The house is being wired

by Jackson Electric Co. Holtzclaw could not recall giving

such approval.

It is a violation of the city building code to install an

electric panel in any closet, Wright said, but a house being

built by Contractor Frank Zore at 1082 27th Ave., has such

panel in a bedroom closet. The wiring job was approved

by Holtzclaw May 14.

Holtzclaw said he did approve the project because the

closet was large, had no shelves and he felt the panel was

safer there than over a bed or where children could reach

it. He said he has authority to do this under the bu.iding

code.

A wiring job by Wright at 1776 40th Ave. was rejected

by Holtzclaw because the panel was located directly above

a washing machine location, a violation of city rules.

Wright said Holtzclaw approved the job after the in-

spector talked with Gayland Reed of Reed Construction

Co., contractor on the project. Holtzclaw told TODAY he

approved the job after Reed agreed to move the washing

machine connection. He admitted he was given a load of

cement blocks by Reed. The inspector said the blocks had

the corners chipped.

Russell Burks, contractor, hired a non-licensed electri-

cian to wire a house he was building on 25th Avenue but

the wiring job, which Wright described as ‘‘a hell of a

mess,’’ was rejected by Holtzclaw.

Wright was asked to correct the faulty wiring and get it

approved. He said he was permitted by Holtzclaw to take

out a permit in his name, as a licensed electrician. He made

no changes in the writing but the project was then approved

by the inspector Holtzclaw and the faulty wiring was cov-

ered by installation of walls and ceilings.

Holtzclaw told TODAY he did approve the job later but

said the wiring had been changed to conform with the code.

Wright, who said he is a personal friend of Donald F.

Adams, City-County Building Department Director and

Holtclaw’s immediate supervisor, knows of Holtzclaw’s

activities.

Wright said he personally told Adams that Holtzclaw is

getting anything he wants from the contractors.

Adams told TODAY he had heard accusations that Holtz-

claw had accepted money for permits which he brought to

city hall for the customers. He said he ordered that practice

stopped.

He said he heard Holtzclaw was accepting loans from

contractors and reported the information.to City Manager

DuMars. Adams said he also ordered Holtzclaw to stop

making the loans because it looked bad for the department.

Adams said his orders to Holtzclaw were given several

months ago, prior to the date Barker said he refused fur-

ther loans to the inspector.

ADAMS: PAYOFFS YES—

BUT NONE IN VERO

By Duxe Newcomer

TODAY Staff Writer

Vero Beacnh—Donald F. Adams is the first to admit that

payoffs to city and county building officials is a common

practice in the state, but adds quickly, it isn’t happening

in Vero Beach.

The target of many such charges, Adams says bluntly:

“*T have the cleanest department in the entire state.’’

Now into his fifth year as director of the City-County

Building Department, the accusations from contractors dis-

turb him, but he maintains he is in the right and plans to

continue demanding quality building.

Both Adams and his department have come under fire in

a current investigation by TODAY which has produced

accusations of improprieties.

These include the alleged attempted shakedowns of con-

tractors, loans solicited by a building department official

and favoritism shown to some contractors.

Adams believes TODAY is being used by special interests

and suggests if corruption in building departments is of

special interest, other cities should be investigated.

Of the many accusations filed with TODAY against him,

Adams denies he was involved in any wrongdoing. He cited

each case in which he was accused of allowing one con-

tractor to perform acts he had refused others as being his

privilege under the building code.

The city building code, an adaptation of the Southern

Standard Building Code used throughout the South, speci-

fivs materials to be used in all instances of construction,

but permits the building official to allow an alternate that

is of equal or better quality.

In cases where he has deviated from the code, Adams

said he is justified by allowing other contractors to use the

newly approved materials in future construction.

He admits he is a strict enforcer of the building code,

an opinion all contractors contacted by TODAY share, but

he denies he shows favoritism.

‘*T’ve been called a ‘smart ass’ and told I’m arrogant,’’

the 46-year-old official says, ‘‘but I don’t mean to be. That’s

just my way of expressing myself. It’s what God gave me.’’

He was a carpenter for several years, then became ‘‘a

smal] time’’ general contractor 15 years ago. He never

made it ‘‘big’’ as a contractor, ‘‘not from lack of brains”’

but from lack of money, he explains.

Rumors that he ‘‘lives high’’ are just false rumors, he

Contrary to reports he paid cash for a new Cadillac last

year, Adams says he financed the $7,200 car through Flor-

ida First National Bank in Vero Beach after Indian River

Citrus Bank refused the financing.

Rumors that his wife took two European vacations in the

last two years are also incorrect, Adams says. She did

make one trip to Europe but that on a budget allowance.

The city official claims he has nothing to fear and noth-

ing to hide. Although he is not happy to learn of problems

in his department, he is at least pleased they have come to

his attention.

“*We are definitely going to folow up on it,’’ Adams says

in reference to the information TODAY uncovered. ‘‘I will

talk with the people involved and there will be some house-

a ing. Something will be done by the turn of next week,’’

says.

THIS CONTRACTOR BEAT CITY HALL

By Duxe Newcome

TODAY Staff Writer

Vero Beacn—Contractor Bernie St. Pierre has no quar-

rel with city building department inspectors for their

thoroughness in inspections. But he fought back, alone in

battle, against what he called coercion and lies.

St. Pierre, who has constructed 200 homes in the area,

won the first round in his fight with city hall last month

when he was found innocent by a six-member jury in Mu-

nicipal Court of three violations of city ordinances.

The contractor, angered over what he called harassment

by the city, ignored a stop work order issued by Building

Department Director Donald F. Adams.

Last week he won another major victory in Circuit Court

after Adams gave conflicting testimony on the witness

stand.

St. Pierre won approval from circuit court to continue

building a structure when testimony was given that Adams

presented different accounts of his dealing with St. Pierre,

both under oath.

A telephone conversation April 7 between Adams and

St. Pierre’s attorney, Robert Stone, was tape-recorded by

Sheriff’s Investigator Sgt. Joe J. Sardella, who told the

court he was assigned by the sheriff to investigate possible

coercion ond extortion in the conflict.

The recording, made without Adam’s knowledge, was

played in court for Judge Wallace Sample during a hear-

ing on a writ of mandamus St. Pierre was seeking to allow

him to continue building.

The recording disclosed that Adams told Stone he was

satisfied that St. Pierre had compaction on the soil beneath

the slab of the home he was building.

Adams also told Stone during the conversation he in-

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