Petition — Melton v. Bow

IN THE

Supreme Court of the United States

October Term, 1978

No. 78- ‘d

-

CHARLES E. MELTON,

Petitioner,

Vv.

MICHAEL L. BOW,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF GEORGIA

ARTHUR K. BOLTON

Attorney General

ROBERT 3S. Stusss, I]

Executive Assistant

Attorney General

Don A. LANGHAM

First Assistant

Attorney General

MICHAEL J. BOWERS

Senior Assistant

Attorney General

JOHN C. JONES .

Assistant Attorney General

Counsel for Petitioner

132 State Judicial Building

October, 1978 Atlanta, Georgia 30334

Page

CI oo a's nn gh pan shee eedntdeasenne 1

SUMBEUIBUC LION, .......225: iid tuiee caine inal we a a 2

QUESTIONS PRESENTED FOR REVIEW....... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.................... 2

STATEMENT OF THE CASE................... 4

REASONS FOR GRANTING THE WRIT........ 5

I. THE DECISION BELOW CREATES A

CONCLUSIVE PRESUMPTION IN

CONFLI@T WITH THE DECISIONS

IE EE id 5 wn wed ery oo nee ww emia 5

Il. THE DECISION BELOW CREATES A

CLASSIFICATION THAT IMPOSES

AN INVIDIOUS DISCRIMINATION

ON NON-MEDIA DEFENDANTS IN

DEFAMATION PER SE CASES............ 7

AR EEA TORE a toe ae ae a a 9

CERTIFICATE OF SERVICE................... 10

Ee Bi nos SRR URDU ee Pe a la

RR Fara a ee a aa nee ar lb

RIESE Oe Oa a rer ene a le

a a a on any Se ld

TABLE OF AUTHORITIES

Cases: iis

Bell v. Burson, 402 U.S. 535 (2971)..............2.. 6

Cleveland Board of Education v. LaFleur,

Er Ns oe card acen ake dus auc’ 6

Gertz v. Robert Welsh, Inc., 418 U.S. 323 (1974)...... 8

Hardy v. Williamson, 86 Ga. 551, 12 8.E. 874

SERS ae eet a ar ter ee ge eee 3

Heiner v. Donnan, 285 U.S. 312 (1932)............. 6

Hoeper v. Tax Commission, 284 U.S. 206 (1931)...... 6

Schlesinger v. Wisconsin, 270 U.S. 230 (1926)........ 6

Stanley v. Illnois, 405 U.S. 645 (1972)... ......---. 6,8

Time, Inc. v. Firestone, 424 U.S. 448 (1976). ........ 6,7

Turner v. Department of Employment Security,

ee, Oe CR ka eee tw kibadbed wees cae ss 6

Vlandis v. Kline, 412 U.S. 441 (1973).............. 6

Statutes:

Giooneia Code § SB-198. . sno en ob ee eas ice ss 3,5

ee eS ers ee reer” 3,5

Georgia Code § 106-701... .. 02. cece ese esas 2

ee ae EB errr 3,5

eR ch oa valves nea fences en se ee ka 2

Constitutional Provisions:

Fourteenth Amendment. .......... 00. cece eens passim

il

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-

CHARLES E. MELTON,

Petitioner,

Vv.

MICHAEL L. BOW,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF GEORGIA

The petitioner, Charles E. Melton, respectfully prays

that a writ of certiorari be issued to review the judgment

and opinion of the Supreme Court of Georgia entered in

this action on July 21, 1978.

OPINIONS BELOW

The opinion of the Supreme Court of Georgia is re-

ported at 241 Ga. 629, S.E. 2d (1978). A copy of

the original decision is included as Appendix A. A copy of

the petitioner’s motion for rehearing is included’ as Ap-

pendix B. The revised and final decision of the Supreme

Court of Georgia as reported at 241 Ga. 629, S.E.

2d , is included as Appendix C. The opinion of the

Court of Appeals of Georgia is reported at 145 Ga. App.

272, ___ S.E. 2d _____ (1978). A copy is included as

Appendix D.

-—

IE ATER RR

:

:

2

JURISDICTION

The judgment of the Supreme Court of Georgia was

entered July 6, 1978, and the petitioner’s motion for re-

hearing was denied July 21, 1978. This petition for certio-

rari was filed within ninety (90) days of that date. This

Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§ 1257(3).

QUESTIONS PRESENTED FOR REVIEW

I. Whether a conclusive presumption of injury to the

reputation of a plaintiff in a defamation per se case vio-

lates the defendant’s right to due process under the

Fourteenth Amendment.

II. Whether a conclusive presumption of injury to the

reputation of a plaintiff in a defamation per se case denies

equal protection under the Fourteenth Amendment to a

non-media defendant.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

United States Constitution, Amendment XIV, § 1:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

Georgia Code § 105-701:

A libel is a false and malicious defamation of another,

3

expressed in print, or writing, or pictures, or signs, tending

to injure the reputation of an individual, and exposing

him to public hatred, contempt, or ridicule. The publica-

tion of the libelous matter is essential to recovery.

Georgia Code § 105-702:

Slander, or oral defamation, consists, first, in imputing

to another a crime punishable by law; or, second, charging

him with having some contagious disorder, or being guilty

of some debasing act which may exclude him from society;

or, third, in charges made against another in reference to

his trade, office, or profession, calculated to injure him

therein; or, fourth, any disparaging words productive of

special damage flowing naturally therefrom. In the last

case, the special damage is essential to support the action:

in the first three, damage is inferred.

Georgia Code § 38-113:

Presumptions are either of law or of fact. The former

are conclusions and inferences which the law draws from

given facts. The latter are exclusively questions for the

jury, to be decided by the ordinary test of human ex-

perience.

Georgia Code § 38-118:

Other presumptions of law, such as of innocence, and in

some cases of guilt, of continuance of life for seven years,

of a mental state « nce proved to exist, and all similar

presumptions, may be rebutted by proof.

‘The types of communications which are slanderous per se are,

when written, libelous per se. See, e.g., Hardy v. Williamson, 86 Ga.

501, 557, 12 S.E. 874, 876 (1891).

4

STATEMENT OF THE CASE

The petitioner seeks this Court’s review of a decision of

the Supreme Court of Georgia upholding a damage award

of $200,000 in a defamation per se case where the plain-

tiff was shown to have suffered no damage to his reputa-

tion. Michael Bow, the respondent herein, brought an

action against the petitioner for libel and slander, assert-

ing that the petitioner had made certain defamatory re-

marks. The remarks were allegedly made during the

eourse of an investigation conducted by Dr. Melton, as

head of the Chemistry Department of the University of

Georgia, following a report by Bow that he had received a

W-2 form for earnings as a student worker at a time when

he was no longer working there.

The case was tried before a jury in February, 1977. At

the conclusion of the respondent’s case, Dr. Melton

moved for a directed verdict based upon a defense of

privilege and a failure to show actual malice. The motion

was denied, and subsequently, the jury returned a verdict

for $200,000 in favor of respondent. The $200,000 verdict

was upheld by the Georgia Court of Appeals on February

21, 1978, and a rehearing was denied by that court on

March 14, 1978.

On certiorari, the Georgia Supreme Court, despite

positive, direct and uncontroverted testimony by respon-

dent’s own witnesses that the respondent continued to

have an outstanding reputation at the time of trial,

affirmed the decision of the Court of Appeals holding

that the respondent had no burden to prove damage to

his reputation as the law ‘conclusively presumes injury

to reputation.”’ Further, the Georgia Supreme Court held

that evidence that the respondent had a good reputation

could not disprove injury to his reputation. (A-3a).

5

The inference of injury to reputation in defamation per se

cases as provided in Ga. Code § 105-702 had never before

been interpreted as being conclusive or as not being sus-

ceptible to rebuttal. See Ga. Code §§ 38-113 and 38-118.

The petitioner therefore filed a motion for rehearing

(B-1b) raising the issues presented in this petition. These

constitutional issues could not have been raised before.

The motion for rehearing was denied on July 21, 1978.

Although the court did modify its original opinion by

substituting “‘infers’’ for “conclusively presumes’, it

nevertheless continued to hold that evidence that the

respondent had a good reputation could not disprove

injury to his reputation. (C-8c), thus maintaining the

substance of its original decision intact.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CREATES A CONCLU-

SIVE PRESUMPTION IN CONFLICT WITH

THE DECISIONS OF THIS COURT.

In reaching its decision, the Georgia Supreme Court

held:

‘‘Bow had no burden to prove that his reputation had

been damaged by the statements imputing a crime

to him. The law conelusively presumes injury to his

reputation. The evidence of witnesses that Bow had

a good reputation could not disprove injury to his

reputation.”’ [Emphasis added] (A-3a).

In denying the petitioner’s motion for rehearing, the

Georgia Supreme Court modified its opinion by substi-

tuting “infers” for ‘conclusively presumes.” This change,

however, was insufficient to correct the original error, as

the court left standing the language that the respondent

6

had no burden to prove damages and, more importantly,

that the evidence that the respondent had a good repu-

tation could not disprove injury to reputation. (C-3c).

In spite of this change, the presumption remains conclu-

sive because it is “incapable of being overcome by proof

of the most positive character.’’ Heiner v. Donnan, 285

US. 312, 324 (1932).

This Court has declared that conclusive presumptions

have long been disfavored, Vlandis v. Kline, 412 U.S. 441,

446 (1973), and on numerous occasions has struck down

conclusive presumptions as violative of the Due Process

Clause. Schlesinger v. Wisconsin, 270 U.S. 230 (1926);

Hoeper v. Tax Commission, 284 U.S. 206 (1931); Bell v.

Burson, 402 U.S. 535 (1971); Stanley v. Illinois, 405 U.S.

645 (1972); Cleveland Board of Education v. LaFleur, 414

U.S. 623 (1974); Turner v. Department of Employment

Security, 423 U.S. 44 (1975).

In Viandis, this Court struck down Connecticut’s irre-

buttable presumption that because a student was a non-

resident at the time of his application for admission, he

remained a non-resident for the entire duration of his

enrollment. That presumption failed because it was not

“necessarily or universally true in fact’? and because the

state had ‘reasonable alternative means” of making the

determination. Vlandis v. Aline, supra at 452.

For the same reasons that the Connecticut statute

failed, the conclusive presumption created by the Georgia

Supreme Court would also fail, for it is not necessarily

or universally true in fact, and other reasonable means

are available for making the crucial determination of

whether the plaintiff in defamation cases has actually

suffered injury to his reputation. As this Court held in

Time, Inc. ». Firestone, 424 U.S. 448, 459 (1976), involv-

7

ing as here libel per se, a defamation plaintiff is not en-

titled to recover compensatory damages without a show-

ing of actual injury by competent evidence. C learly then,

the conclusive presumption established by the Georgia

Supreme Court is not necessarily or universally true and

is not the only reasonable means to show injury to a

plaintiff’s reputation.

As the decision of the Georgia Supreme Court provides

no opportunity for a defendant in a defamation per se

case to demonstrate the absence of actual injury to a

plaintiff’s reputation and effectively forecloses individual

judicial determination of the issue, it stands squarely in

conflict with the decisions of this Court. This conflict is

of 2 magnitude serious enough to warrant the grant of

certiorari to review the judgment below.

Il. THE DECISION BELOW CREATES A CLASSI-

FICATION THAT IMPOSES AN INVIDIOUS

DISCRIMINATION ON NON-MEDIA DEFEN-

DANTS IN DEFAMATION PER SE CASES.

By virtue of the conclusive presumption created by the

Georgia Supreme Court, non-media defendants in defa-

mation cases are now put in a position where damages

may be recovered against them without a showing of

actual injury by the plaintiff. This position is completely

contrary to that of a media defendant against whom dam-

ages may be recovered only by a showing, through com-

petent evidence, that the plaintiff’s reputation has actu-

aliy been injured. Time, Inc. v. Firestone. supra at 459.

As this differentiation works an invidious discrimination

upon the non-media defendant, it is completely irrational

and does not comport with the constitutional require-

ments of equal protection.

8

This Court has labeled as “an oddity of tort law’”’ the

common law of defamation, ‘for it allows recovery of

purportedly compensatory damages without evidence of

actual loss.”’ Gertz v. Robert Welch, Inc., 418 U.S. 323, 349

(1974). Furthermore, as it now stands in Georgia, a plain-

tiff may recover substantial sums in jury awards as com-

pensation for presumed injury to reputation, when in

fact, no injury has occurred. The conclusive presumption

established by the Georgia Supreme Court forecloses the

proper judicial determination of actual injury to reputa-

tion by disdaining ‘‘present realities in deference to past

formalities,” thereby “running roughshod”’ over the in-

terests of defendants in such cases. Stanley v. Illinois,

supra at 657.

In Gertz, this Court recognized that jury awards based

on presumed injury were largely uncontrolled and that

‘States have no substantial interest in securing for plain-

tiffs .. . gratuitous awards of money damages far in ex-

cess of actual injury.” 418 U.S. 323, at 349. State remedies

for defamation are to reach “‘no farther than is necessary

to protect the legitimate interest involved.” Jd.

Such is not the case in Georgia by virtue of the con-

clusive presumption established by the Georgia Supreme

Court for the first time in this case. This pronouncement

goes beyond merely conflicting with the decisions of this

Court and rises to the level of a denial of equal protection

to non-media defamation defendants. The proper resolu-

tion of these issues depends upon a grant of certiorari to

review the decision below.

9

CONCLUSION

For these reasons, a writ of certiorari should be issued to

review the judgment and opinion of the Georgia Supreme

Court.

Respectfully submitted,

ARTHUR K. BoLton

Attorney General

Rosert 8S. Stusss, II

Executive Assistant

Attorney General

Don A. LANGHAM

First Assistant

Attorney General

MiIcHAEL J. Bowers

Senior Assistant

Attorney General

JOHN C. JONES

Assistant Attorney General

10

CERTIFICATE OF SERVICE

I, MICHAEL J. BOWERS, a member of the bar of the

Supreme Court of the United States and counsel for the

Petitioner CHARLES E. MELTON, hereby certify that

I have served three copies of the foregoing Petition for a

Writ of Certiorari to the Supreme Court of Georgia, by

depositing same in the United States Mail, first class

postage prepaid, to:

Dennis T. CATHEY

Cathey & Strain

Post Office Box 689

Cornelia, Georgia 30531

This day of October, 1978

MicuakE. J. Bowers

Senior Assistant Attorney General

APPENDIX A

APPENDIX A

IN THE SUPREME COURT OF GEORGIA

Decided: July 6, 1978

33658. MELTON v. BOW

JORDAN, Justice.

This court granted certiorari to review the decision of

the Court of Appeals in Melton v. Bow, 145 Ga. App. 272

(243 SE2d 590) (1978), a case in which Michael L. Bow

brought an action against Dr. Charles E. Melton for slan-

der and libel. The jury returned a verdict for Bow in the

amount of $200,000, and the Court of Appeals affirmed.

Dr. Melton hed a limited privilege of communication

of information about Bow in an investigation he made

for the University of Georgia concerning the report made

by Bow that he had received a W-2 form for earnings as

a student-worker at the University at a time when he was

no longer working there.

In order to claim a limited privilege under Code § 105-

709, the communications must be made only to proper

persons, and the privilege may not be used as a cloak for

venting private malice. Code § 105-710; Sheftall v. Central

of Ga. Ry. Co., 123 Ga. 589 (5) (51 SE 646) (1905); Ivins

v. Louisville & Nashville R. Co., 37 Ga. App. 684 (8) (141

SE 423) (1927); Veazy v. Blair, 86 Ga. App. 721 (72 SE2d

481) (1952); Camp v. Maddox, 93 Ga. App. 646, 651 (92

SE2d 581) (1956).

The evidence showed that Dr. Melton made defama-

tory remarks and published defamatory reports about

Bow to numerous persons not involved in any investiga-

tion, and that he continued to make and publish such

defamatory statements after the investigation by the

la

2a

University security department had disclosed that the

discrepancy in the accounts had been caused by an em-

hezzler in Dr. Melton’s department. There was no evi-

dence that Bow was guilty of any of the numerous mis-

deeds with which he was charged by Dr. Melton. We

concur in the view of the Court of Appeals that the evi-

dence authorized a finding that the publications were

made to persons not concerned with the investigation,

and that the circumstances amply authorized a finding

of malice. —

This court in granting certiorari was concerned with

Division 3 of the opinion of the Court of Appeals, in which

it was held: “Appellant [Dr. Melton] also contends that

the verdict is without evidentiary support because the

testimony of appellee’s own witnesses showed that his rep-

utation had not been damaged. One of Bow's witnesses

twice said, ‘... he has an outstanding reputation.” This

testimony, appellant argues, rebutted the presumption of

damages which attached upon proof of the defamatory

statements and placed on Bow the burden of proving

actual damages. Assuming appellant is correct about the

effect of that testimony, we still cannot find the verdict

to be unsupported by the evidence. Another witness tes-

tified that when Dr. Melton accused Bow of criminal ac-

tivity. ‘. . . it made me wonder about him.’ Applying the

anv evidence rule stated above, we are constrained to

hold in favor of the jury’s verdict.”

Dr. Melton in his petition for certiorari strongly argues

that the testimony as to the good reputation of Bow re-

futed the presumption of injury to him, and that there

was no evidence of injury to Bow’s reputation authorizing

the recovery of damages.

3a

We reject this argument of Dr. Melton, but feel that

the quoted paragraph of the opinion of the Court of

Appeals is a misleading statement on the law applicable

to the proof of damages in a case where false statements

are made which are per se slanderous and libelous. Dr.

Melton, by orai and written statements, accused Bow of

the theft of hotplates from the chemistry laboratory where

he had worked. He also called Bow a liar, stated that

Bow was in trouble with the I. R.S., and made many

other derogatory remarks about him.

To impute the crime of theft to a person is actionable

per se without proof of special damages. Roberts v. Ram-

sey, 86 Ga. 432 (12 SE 644) (1890); Weatherholt v. Howard,

143 Ga. 41 (84 SE 119) (1914); Harrison v. Pool, 24 Ga.

App. 587 (101 SE 765) (1919); Ingram v. Kendrick, 48

Ga. App. 278 (172 SE 815) (1933); Atlanta Journal Co.

v. Doyal, 82 Ga. App. 321, 331 (4) (60 SE2d 802) (1950);

Duchess Chenilles Inc. v. Masters, 84 Ga. App. 822, 829

(67 SE2d 600) (1951); Davis v. Macon Telegraph Pub-

lishing Co., 93 Ga. App. 633 (2) (92 SE2d 619) (1956).

Bow had no burden to prove that his reputation had

been damaged by the statements imputing a crime to

him. The law conclusively presumes injury to his repu-

tation. The evidence of witnesses that Bow has a good

reputation could not disprove injury to his reputation.

This evidence was relevant on the issue of the amount of

damages, since libelous statements are certainly more in-

jurious to the reputation of a person of good reputation

than to a person of bad reputation. Augusta Chronicle

Publishing Co. v. Arrington, 42 Ga. App. 746 (3) (157 SE

394) (1930).

We agree with the determination of the Court of Appeals

4a

that the evidence authorized the jury verdict, but this

finding should not have been placed solely on the testi-

mony of a witness that the false statements ‘‘made her

wonder’’ about Bow.

After further consideration of the evidence in the ease,

we are of the opinion that the verdict was not excessive.

Judgment affirmed. All the Justices concur.

APPENDIX B

APPENDIX B

IN THE SUPREME COURT OF GEORGIA

CASE NO. 33658

CHARLES E. MELTON,

Petitioner

Vv.

MICHAEL L. BOW,

Respondent

MOTION FOR REHEARING

ARTHUR K. BOLTON

Attorney General

Rosert 8. Stusss, II

Executive Assistant Attorney General

Don A. LANGHAM

First Assistant Attorney General

MicHAEL J. BOWERS

Senior Assistant Attorney General

JOHN C. JONES

Assistant Attorney General

Please serve:

Michael J. Bowers

132 State Judicial Building

Atlanta, Georgia 30334

(404) 656-3330

lb

2b

IN THE SUPREME COURT OF GEORGIA

CHARLES E. MELTON,

Petitioner |

i > CASE NO. 33658

MICHAEL L. BOW, |

Respondent |

MOTION FOR REHEARING

Charles E. Melton, Petitioner in the instant case, files

this motion for rehearing on July 14, 1978, during the

term in which the decision by this Court was rendered

and within ten days of the rendition of said decision on

July 6, 1978.

The Petitioner respectfully moves this Court to grant a

rehearing in this case on the following grounds:

A. THE DECISION OF THE COURT ESTAB-

LISHES AN UNCONSTITUTIONAL PRE-

SUMPTION.

The Court’s decision declares that the rationale used by

the Court of Appeals [Welton v. Bow, 145 Ga. App. 272,

274 (1978)] in upholding the jury’s verdict was not a

proper statement of the law concerning the presumption

of injury to reputation in cases of defamation per se. In

setting forth an alternative basis to uphold the jury’s

verdict, this Court has established, for the first time, a

conclusive presumption concerning the inference of injury

to reputation authorized in cases of defamation per se.

Specifically, as a necessary step in its decision to uphold

the jury’s verdict, this Court held:

“The law conclusively presumes injury to his [Bow’s]

reputation. The evidence of witnesses that Bow has a

good reputation could not disprove injury to his

reputation.”’ [Emphasis and bracketed matter added.]

3b

The Petitioner is unaware of any previous such holding

by an appellate court of this State. Moreover, in reaching

this position the Court has created a constitutionally in-

valid presumption which should be corrected on rehear-

ing. In particular, the Petitioner believes that such

holding is contrary to the dictates of the Due Process

Clause of the Fourteenth Amendment in that it creates a

presumption which is arbitrary and unreasonable.

Conclusive presumptions have long been disfavored

under the Due Process Clause. Vlandis v. Kline, 412 U:S.

441, 446 (1973). In Vlandis, the United States Supreme

Court struck as violative of the Due Process Clause a

Connecticut statute which created a conclusive presump-

tion that the status of a student as a non-resident con-

tinued throughout his attendance at a state-supported

university. The test set forth in Viandis is quite simple:

“{Ijt is forbidden by the Due Process Clause to deny

an individual the resident rates on the basis of a per-

manent and irrebuttable presumption of nonresi-

dence, when that presumption is not necessarily or

universally true in fact, and when the State has

reasonable alternative means of making the crucial

determination.” Jd. at 452.

This same test was used in Cleveland Board of Education

v. LaFleur, 414 U.S. 632 (1974), to strike a conclusive

presumption that school teachers who were four or five

months pregnant were physically incapable of continuing

their teaching duties. The instances are legion where con-

clusive presumptions, such as that which this Court has

now established, have been struck as violative of the Due

' Petitioner recognizes that in normal circumstances constitutional

questions may not be raised for the first time before this Court. How-

ever, as the Court’s decision is the first time this theory of a conclusive

presumption has been enunciated, it is proper at this time to raise

the question of the constitutional validity of such presumption.

a

4b

Process Clause. See, e.g., Schlesinger v. Wisconsin, 270

U.S. 230 (1926); Hoeper v. Tax Commission, 284 U.S.

206 (1931); Heiner v. Donnan, 285 U.S. 312 (1932); Bell v.

Burson, 402 U.S. 535 (1971); Stanley v. Illinois, 405 U.S.

645 (1972); Turner v. Department of Employment Security,

432 U.S. 44 (1975).

Here, the conclusive presumption of injury to reputa-

tion in cases of defamation per se is clearly not necessarily

or universally true. This case is a perfect example of the

absence of universality of the truth of the presumption.

The Repondent’s reputation simply was not injured by

the statements of the Petitioner. Further, logically it

eannot be said that any person’s reputation is injured

each time someone else calls him a lar or a thief.

Moreover, the conclusive presumption established by

the Court in this case is not the only reasonable means of

making the crucial determination in defamation cases

concerning whether the plaintiff’s reputation has been

harmed. In defamation cases involving newspaper de-

fendants, the United States Supreme Court has expressly

held that compensatory awards must be supported by

competent evidence concerning the injury to reputation.

Time, Inc. v. Firestone, 424 U.S. 448, 459 (1976). In that

ease the United States Supreme Court recognized that

such requirement displaced the former presumption of

injury to reputation which arose upon proof of libel per se.

Id. at 462, n.7. Thus, it clearly cannot be denied that there

is another reasonable way for a defamation plaintiff to

establish damage to his reputation.

B. THE DECISION OF THE COURT ESTAB-

LISHES AN UNCONSTITUTIONAL CLASSI-

FICATION.

If left to stand, the conclusive presumption established

db

by the Court irrationally differentiates between defama-

tion defendants who are part of the news media and those

who are not. We have already shown that as a matter of

federal constitutional law, recovery against media defen-

dants in defamation cases, (including defamation per se

cases), may only be had when the plaintiff shows by com-

petent evidence that his reputation has in fact been

injured. Time, Inc. v. Firestone, supra at 459. On the

other hand, by virtue of this Court’s decision here, a non-

media defendant may be assessed damages in a defama-

tion per se case without any showing of injury to the

plaintiff's reputation. In fact, this Court holds that the

non-media defendant is barred from disproving injury to

the plaintiff’s reputation. Such a disparity of treatment of

defamation defendants does not comport with the Equal

Protection Clause of the Fourteenth Amendment, U.S.

Const. Amend. XIV.

A rational basis must exist for such a distinetion be-

tween defamation defendants. See, Traylor v. Democratic

Party of Georgia, Supreme Court of Georgia, Case No.

33644 (Jun. 27, 1978). To state the test with respect to

the distinction made is to answer the question. There is

no rationality whatsoever in placing the burden of a con-

clusive presumption on a non-media defendant and yet

permitting a media defendant to enjoy the benefit of

requiring the plaintiff to show injury to his reputation by

competent evidence. Time, Inc. v. Firestone, supra at 459.

C. THE DECISION OF THE COURT IS CON-

TRARY TO GEORGIA LAW.

The decision of the Court that the inference of injury

to reputation authorized by Ga. Code § 105-702 in cases

of defamation per se is a conclusive presumption is with-

out foundation in Georgia law. Certain conclusive pre-

6b

sumptions are set forth by statute. £.g. Ga. Code § 38-114.

Conclusive presumptions are not, however, generally

favored. Id.; Cobb County Rural Electric Membership

Corp. v. Board of Lights, 211 Ga. 535, 539 (1955). In order

for a conclusive presumption to arise, some fraud must

have existed on the part of the party against whom the

presumption is raised. Ga. Code § 38-116; Cobb County

Rural Membership Corp. v. Board of Lights, supra. No

fraud or deception as is contemplated by Ga. Code

$ 38-116 is involved here.

On the other hand, the presumption of injury with

respect to a defamation per se plaintiff is described only

as an inference. Ga. Code § 105-702. There is no hint in

the Code that this inference is a conclusive presvm) ion.

Further, the Petitioner has not been able to find wy re-

ported case decison which has declared this inference of

injury to reputation to be conclusive and irrebuttable. In

fact, Ga. Code § 38-118 clearly provides that such an

inference may be rebutted by proof.

7b

D. CONCLUSION

Based on the foregoing, the Petitioner respectfully

requests that the aforementioned decision of this Court

be reversed. Absent the conclusive presumption discussed

herein, the Respondent has clearly failed by evidence or

presumption to carry his burden of establishing injury to

his reputation which is the only interest protected under

Georgia law in defamation cases. Spence v. Johnson, 142

Ga. 267, 270 (1904). Without such injury the Respondent

is not entitled to recover any award whatsoever from the

Petitioner.

Respectfully submitted.

ARTHUR K. Botton

Attorney General

Rosert S. Stusps, II

Executive Assistant Attorney General

/s/ Don A. LANGHAM

Don A. LanGHAM

First Assistant Attorney General

MicHakrt J. Bowers

MuichakEL J. Bowers

Senior Assistant Attorney General

na

/s/ Joun C. JoNEs

JOHN C. JONES

Assistant Attorney General

Please serve:

Michael J. Bowers

132 State Judicial Building

Atlanta, Georgia 30334

(404) 656-3330

8b

CERTIFICATE OF COUNSEL

1, MICHAEL J. BOWERS, of counsel for Petitioner in

the foregoing action, do hereby certify that upon careful

examination of the opinion of the Court, I believe that the

Court has overlooked and failed to apply material facts

and controlling authority more fully set forth in the fore-

going Motion for Rehearing and that a proper application

of said material facts and controlling authority would

require a different judgment from that rendered.

This 14th day of July, 1978.

's’ MicHaAEt J. BowERS

MicHakEL J. BOWERS

Senior Assistant Attorney General

9b

CERTIFICATE OF SERVICE

I, MICHAEL J. BOWERS, do hereby certify that I

have this date served a copy of the within and foregoing

Motion for Rehearing, upon:

Mr. Dennis T. Cathey

Attorney for Respondent

Post Office Box 689

Cornelia, Georgia 30531

by depositing same in the United States Mail in a properly

addressed envelope with adequate first class postage

thereon.

This 14th day of July, 1978.

/s/ MicHaE. J. BOWERS

MicHAEL J. BOWERS

Senior Assistant Attorney General

APPENDIX C

APPENDIX C

33658. MELTON yv. BOW.

JORDAN, Justice.

This court granted certiorari to review the decision of

the Court of Appeals in Melton v. Bow, 145 Ga. App. 272

(243 SE2d 590) (1978), a case in which Michael L. Bow

brought an action against Dr. Charles E. Melton for slan-

der and libel. The jury returned a verdict for Bow in the

amount of $200,000, and the Court of Appeals affirmed.

Dr. Melton had a limited privilege of communication

of information about Bow in an investigation he made for

the University of Georgia concerning the report made by

Bow that he had received a W-2 form for earnings as a

student-worker at the university at a time when he was

no longer working there.

In order to claim a limited privilege under Code § 105-709,

the communications must be made only to proper persons,

and the privilege may not be used as a cloak for venting

private malice. Code § 105-710; Sheftall v. Central of Ga.

R. Co., 123 Ga. 589 (5) (51 SE 646) (1905); Jvins v. Louis-

ville & Nashville R. Co., 37 Ga. App. 684 (8) (141 SE 423)

(1927); Veazy v. Blair, 86 Ga. App. 721 (72 SE2d 481)

(1952); Camp v. Maddox, 93 Ga. App. 646, 651 (92 SE2d

581) (1956).

The evidence showed that Dr. Melton made defama-

tory remarks and published defamatory reports about

Bow to numerous persons not involved i) any investiga-

tion, and that he continued to make and publish such

defamatory statements after the investigation by the uni-

versity security department had disclosed that the dis-

crepancy in the accounts had been caused by an embezzler

le

2c

in Dr. Melton’s department. There was no evidence that

Bow was guilty of any of the numerous misdeeds with

which he was charged by Dr. Melton. We concur in the

view of the Court of Appeals that the evidence authorized

a finding that the publications were made to persons not

concerned with the investigation, and that the cireum-

stances amply authorized a finding of malice.

This court in granting certiorari was concerned with

Division 3 of the opinion of the Court of Appeals, in which

it was held: ‘Appellant [Dr. Melton] also contends that

the verdict is without evidentiary support because the

testimony of appellee’s own witnesses showed that his rep-

utation had not been damaged. One of Bow’s witnesses

twice said, ‘... he has an outstanding reputation.’ This

testimony, appellant argues, rebutted the presumption of

damages which attached upon proof of the defamatory

statements and placed on Bow the burden of proving

actual damages. Assuming appellant is correct about the

effect of that testimony, we still cannot find the verdict

to be unsupported by the evidence. Another witness tes-

tified that when Dr. Melton accused Bow of criminal

activity, *...it made me wonder about him.’ Applying

the any evidence rule stated above, we are constrained to

hold in favor of the jury’s verdict.”

Dr. Melton in his petition for certiorari strongly argues

that the testimony as to the good reputation of Bow re-

futed the presumption of injury to him, and that there

was no evidence of injury to Bow’s reputation authorizing

the recovery of damages.

We reject this argument of Dr. Melton, but feel that

the quoted paragraph of the opinion of the Court of

Appeals is a misleading statement on the law applicable

to the proof of damages in a case where false statements

at aside

3c

are made which are per se slanderous and libelous. Dr.

Melton, by oral and written statements, accused Bow of

the theft of hotplates from the chemistry laboratory where

he had worked. He also called Bow a liar, stated that Bow

was in trouble with the IRS, and made many other de-

rogatory remarks about him.

To impute the crime of theft to a person is actionable

per se without proof of special damages. Roberts v. Ram-

sey, 86 Ga. 432 (12 SE 644) (1890); Weatherholt v. Howard,

143 Ga. 41 (84 SE 119) (1914); Harrison v. Pool, 24 Ga.

App. 587 (101 SE 765) (1919); Ingram v. Kendrick, 48

Ga. App. 278 (172 SE 815) (1933); Atlanta Journal Co.

v. Doyal, 82 Ga. App. 321, 331 (4) (60 SE2d 802) (1950) ;

Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822, 829

(67 SE2d 600) (1951); Davis v. Macon Telegraph Pub. Co.,

93 Ga. App. 633 (2) (92 SE2d 619) (1956).

Bow had no burden to prove that his reputation had

been damaged by the statements imputing a crime to

him. The law infers injury to his reputation. The evidence

of witnesses that Bow has a good reputation could not

disprove injury to his reputation. This evidence was rele-

vant on the issue of the amount of damages, since libelous

statements are certainly more injurious to the reputation

of a person of good reputation than to a person of bad

reputation. Augusta Chronicle Pub. Co. v. Arrington, 42

Ga. App. 746 (3) (157 SE 394) (1930).

We agree with the determination of the Court of Appeals

that the evidence authorized the jury verdict, but this

finding should not have been placed solely on the testi-

mony of a witness that the false statements made her

wonder” about Bow.

4c

After further consideration of the evidence in the case,

we are of the opinion that the verdict was not excessive. !

Judgment affirmed. All the Justices concur.

ARGUED JUNE 19, 1978— DeEcIpEpD Juty 6, 1978—

REHEARING DENIED JULY 21, 1978.

Certiorari to Court of Appeals of Georgia—145 Ga.

App. 272 (243 SE2d 590).

Arthur K. Bolton, Attorney General, Michael J. Bowers,

Senior Assistant Attorney General, for appellant.

Dennis T. Cathey, Edward E. Strain, III, for appellee.

‘ Under a stipulation between counsel the jury returned its verdict

in one sum so that the amount of compensatory damages and the

amount of punitive damages the jury may have awarded cannot be

ascertained.

ee eee em

APPENDIX D

naa

APPENDIX D

55022. MELTON v. BOW

SHULMAN, Judge.

Bow brought suit against Melton for slander and libel,

alleging that Melton had made certain defamatory re-

marks. Melton defended by denying making certain of

the statements and claiming privilege as to others. Bow

had been employed under a work-study program by the

University of Georgia chemistry department during a

period in which Dr. Melton was the head of that depart-

ment. Over a year after Bow’s departure from the univer-

sity, a controversy arose over certain paychecks. A sub-

sequent criminal investigation conducted by university

police resulted in the forgery conviction of a chemistry

department employee who had caused checks to be issued

in the names of ex-employees (including appellee’s name)

and had then forged indorsements thereon. Bow had no

connection with the forgery scheme. This case coneerns

statements made by Melton during and after the period

of the criminal investigation and in the course of an inde-

pendent investigation Melton purported to conduct.

1. At the close of the plaintiff’s case, appellant moved

for a directed verdict, contending that malice had not

been shown. He enumerates the denial of that motion as

error.

Appellant argues, correctly, that when a prima facie

showing of privilege has been made, the burden is on the

plaintiff to prove actual malice. WSAV-TV v. Baxter, 119

Ga. App. 185 (166 SE2d 416). He contends that there had

been no evidence of malice.

Appellee argued at trial that a jury question had been

1d

2d

raised by the evidence and the trial judge agreed; so do

we.

“Tt is urged that it must be proven that the libelous

publication was made with actual malice or with reckless

disregard of the truth. {Cits.] But such proof is supplied

when the totality of the circumstances suggests majlice,

and even though the publisher may testify that he aeted

in good faith (or without malice) ‘the facts, all the facts,

are to be considered in arriving at the truth of his real

motive.’ (Cits.] It is never expected that the publisher will

admit his own malice. Likewise it would impose too onerous

a burden on plaintiff to expect him to bring forth a wit-

ness to testify that he overheard the publisher say that he

was actuated by malice. The circumstances, all of the

circumstances, must be considered, and from those cir-

cumstances, despite the publisher’s sworn testimony to

the contrary, a jury may properly conclude the publisher

was motivated by malice.” Montgomery v. Pacific &

Southern Co., 331 Ga. App. 712, 716-17 (206 SE2d 631),

affd. 233 Ga. 175 (210 Si2d 714). Considering all the

circumstances of this case, including the persons to whom

the defamatory statements were made, the occasions on

which they were made, and the manner in which they

were published, the jury was authorized to find the

existence of actual malice. In addition, “. . . at the very

least, . . . there was a ‘reckless disregard of the truth’

which is the equivalent of malice.” Id., p. 717. There

was no error in denying the motion for a directed verdict.

2. Following the verdict for appellee, Dr. Melton filed a

motion for judgment notwithstanding the verdict, or in

the alternative, for a new trial. The denial of that motion

is enumerated as error.

A. Citing the decision in Walter v. Davidson, 214 Ga.

3d

187 (104 SE2d 113), appellant contenas that there was no

publication of his remarks because he made them in the

course of a good-faith investigation to persons who were

properly concerned with the progress of the investigation.

However, the fact that the persons to whom he communi-

cated his statements concerning Bow were university

employees does not demand a finding that there was no

publication. ‘‘Certainly a janitor is an employee and there

may be many other employees, all without a duty or au-

thority to control student conduct, and obviously sland-

erous statements about a student stated to such employees

would be publication in contemplation of the law.”

Walter v. Davidson, supra, p. 191. The evidence in this

case supports a finding that Dr. Melton’s remarks were

made to persons ‘“‘without a duty or authority to vntrol”

conduct of the kind which was properly the subject of the

investigation he purported to be making. The evidence,

therefore, supported a finding of publication of the

defamatory statements.

B. In his motion for judgment notwithstanding the

verdict, appellant again raised the issue of malice. That

argument is answered in Division 1 of this opinion.

3. Appellant contends that the verdict was not sup-

ported by the evidence. As noted in Divisions 2 and 3,

there was evidence to support both the jury’s rejection of

appellant’s defense of privilege and its finding of malice

in the making of the defamatory statements. “In passing

on the sufficiency of the evidence to support the verdict,

the appellate courts are to afford the evidence that view

which is most favorable to the appellee and which is de-

signed to uphold the verdict. All conflicts must be ren-

dered against the appellant, and if there is any evidence

to support the verdict it must be affirmed.” Mundy v.

4d

Cincinnati Ins. Co., 141 Ga. App. 106 (8) (232 SE2d 621).

Appellant also contends that the verdict is without

evidentiary support because the testimony of appellee’s

own witnesses showed that his reputation had not been

damaged. One of Bow’s witnesses twice said, “‘. . . he has

an outstanding reputation.” This testimony, appellant

argues, rebutted the presumption of damages which at-

tached upon proof of the defamatory statements and

placed on Bow the burden of proving actual damages.

Assuming appellant is correct about the effect of that

testimony, we still cannot find the verdict to be unsup-

ported by the evidence. Another witness testified that

when Dr. Melton accused Bow of criminal activity, “.. .

it made me wonder about him.”’ Applying the any evi-

dence rule stated above, we are constrained to hold in

favor of the jury’s verdict.

4, The jury returned a verdict against appellant in the

amount of $200,000. Appellant contends that the verdict

was excessive.

‘When a case comes before this court, after the re-

fusal of a new trial by the presiding judge, it comes not

only with the presumption in favor of the verdict, but

also stamped with the approval of the judge who tried

the case, and where no prejudice or bias or corrupt means

in reaching the verdict appear, we are not authorized to

set it aside as being excessive. [Cits.|’ ”’ Jones v. Spindel,

128 Ga. App. 88 (2), 96 (196 SE2d 22). “This court does

not have the broad discretionary powers invested in trial

courts to set aside verdicts, and where the trial court

before whom the witnesses appeared had the opportunity

of personally observing the witnesses, including the plain-

tiff on the stand, has approved the verdict, this court is

without power to interfere unless it is clear from the rec-

5d

ord that the verdict of the jury was prejudiced or biased

or was procured by corrupt means. [Cit.]’’ Kiker v. Davis,

103 Ga. App. 289, 290 (118 SE2d 861).

In view of the allegations that Dr. Melton abused his

position of authority in a wanton and reckless manner to

slander appellee, which allegations were supported by the

evidence, and in the absence of any showing of prejudice

or bias or corrupt means of reaching the verdict or any

abuse of the trial court’s discretion in refusing to over-

turn the verdict, we cannot say the verdict was excessive

as a matter of law.

5. Appellant moved for summary judgment but did not

appeal the denial of his motion until this appeal. Although

the rule is that, after trial and verdict, it is too late to

appeal the denial of summary judgment (Phillips v. Abel,

141 Ga. App. 291 (233 SE2d 384)) appellant argues that

application of that rule would be unfair in this case because

of prior decisions of this court on which he relied in tim-

ing his appeal from the denial of the motion. The motion

was denied in July 1976. In February of that year, this

court held that a denial of summary judgment could be

reviewed “... without the necessity of making applica-

tion for interlocutory appeal where there is a final judg-

ment which is the basis of the appeal.’’ Ga. Motor Club

v. First Nat. Bank &c. Co., 187 Ga. App. 521, 525 (224

SE2d 498), disapproved in Marietta Yamaha, Inc. v.

Thomas, 237 Ga. 840 (229 SE2d 753). Appellant asserts

that, in reliance on that decision, he chose to delay appeal

of the denial. After his time for applying for interlocutory

appeal had passed, in September 1976, this court declared

that after trial, an enumeration of error complaining of

the denial of summary judgment is nonmeritorious. Mul-

linax v. Singleton, 139 Ga. App. 704 (229 SE2d 518).

6d

Although there has been some confusion about the tim-

ing and procedure for appealing the denial of summary

judgment (see Wahler v. Paquin, 143 Ga. App. 773 (240

SE2d 185)), the rule set forth in Mullinaz has been fol-

lowed since it was announced by the Supreme Court in

Hill v. Willis, 224 Ga. 263 (2) (161 SE2d 281). ‘‘A motion

for a summary judgment is somewhat analogous to a

motion for a nonsuit, for if, after being overruled, even

if done improperly, all the evidence shows that a verdict

for the opposing party is authorized, the error is harmless.

The purpose of permitting summary judgments is to dis-

pose of unnecessary trials and not to upset a verdict au-

thorized by the evidence merely because at a previous

stage of the case a finding may not have been authorized in

accordance with such verdict.”’ Id., p. 266. Tae Supreme

Court went on to discuss the statutory changes which had

affected the reviewability of denials of summary judg-

ment, and noted that, even if the denial is subject to

review after verdict, ‘*. .. yet, like a nonsuit, all the evi-

dence adduced before the jury will be considered in re-

viewing such an order, and, if the verdict was authorized,

the prior order overruling the motion for summary judg-

ment will be affirmed as constituting, at most, harmless

error.” Id., p. 267. As we have held in preceding divisions

that the verdict was authorized by the evidence, we hold

that any error in denying appellant’s motion for summary

judgment was harmless and not grounds for reversal.

7d

Judgment affirmed. Bell, C. J., and Birdsong, ./., concur.

ARGUED JANUARY 16, 1978— DEcIDED FEBRUARY 21, 1978

— REHEARING DENIED MArcH 14, 1978—

CERT. APPLIED FOR.

Slander, etc. Madison Superior Court. Before Judge

Burruss.

Arthur K. Bolton, Attorney General, John C. Jones, Staff

Assistant Attorney General, for appellant.

Cathey & Strain, Dennis T. Cathey, for appellee.