Opposition — De Toledano v. Nader

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-940

RALPH DE TOLEDANO,

Petitioner,

v.

RALPH NADER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

RESPONDENT’S BRIEF IN OPPOSITION

MICHAEL NUSSBAUM

RONALD G. PRECUP

LUCIEN HILMER

NUSSBAUM & OWEN

1800 M Street, N.W.

Washington, D.C. 20036

(202) 833-8900

Counsel for Respondent

January 14, 1980

IAT ATS, STEEL BP

Washington, D.C. « THIEL PRESS + (202) 638-4521

(7)

TABLE OF CONTENTS

Page

pe a I ee a eee ee 1

REASONS FOR DENYING THE WRIT ............. 2

1. This Court is without jurisdiction because the

decision below is not a final judgment or decree ...... 2

2. The decision below does not conflict with this

Court’s decision in Time, Inc. v. Pape ..........05. 7

3. The petition raises no novel or important issues

a TS ae Ee eee eee eee 9

Pe te ere a are oe 11

TABLE OF AUTHORITIES

Cases:

Adickes v. 8. H. Kress and Company, 398 U.S. 144

sis 6 goa es ee ae a GS we «eK Ole ooo 8

California v. Stewart, 384 U.S. 436 (1966) ............. 5

Construction Laborers v. Curry, 371 U.S. 542 (1963) ...... 6

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

CE Sk aA eG ee ee ee a On 3,4,5,6,7

Florian v. United States, 114 F.2d 990 (7th Cir. 194%),

rev'd per curiam, 312 U.S. 656 (1941) .............. 3

Goldstein v. Cox, 396 U.S. 471 (1970)... 1. cc ee cc ee 2

Hamilton-Brown Shoe Company v. Wolf Brothers &

Crees, Dee Ue. BOG CIO Ns 6 a se cee wee en ccves 3

Hudson Distributors, Inc. v. Eli Lily & Co., 377 U.S. 386

CS ere eu eae a a ok Oud CoN dw Oke hee 6

Hutchinson v. Proxmitre, ___ U.S. —___, 99 S.Ct. 2675

RPT ESSN GSP ye ENCE ae a a 10

Mercantile National Bank v. Langdeau, 371 U.S. 555

Ss ee eae Da aks Uk eo oes wala » Be 8 Ke 3 ee 6

Miami Herald Publishing Company v. Tornillo, 418 U.S.

I tk eens eos a a's a ky bak aw ae ere 6

(ii)

Cases, continued: Page

Mills v. Alabama, 384 U.S. 214 (1966) ............... 3-4

New York Times Company v. Sullivan, 376 U.S. 254

(1966)... 0 oe o6 o-a wim ieee ie eee 7

North Dakota State Board of Pharmacy v. Snyder’s Drug

Stores, Inc., 414 U.S. 196 CA979)* ..ks 4 eta ee 5

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

(1085) . . co ow oe eien ce oe mee ee mene 4

Switzerland Cheese Association, Inc. v. E. Horne’s Market,

Inc., $65 U.S. 23 (3900) «oes ss 5 64 eee 2

Time, Inc. v. Pape, 401 U.S. 279 (1971) . 0. wee cee 7,8,10

Time, Inc. v. Firestone, 424 U.S. 448 (1976) ............ 5

Village Voice, Inc. v. Rinaldi, 423 U.S. 883 (1975) ........ 3

Statutes:

28 U.8L. $2258 2... cv cccewek ee ee 3

28 U.S.C. G1BS7 2.65. ce cou ewnet ee eee 2,9

28 U.SL. $IRO48 5... os ocean ke eee 2 eee 3

28 U.S.C. SIR9R . oo 00nd kes eee eee r

Rules of Court:

F ederal Rule of Ciel Peecedunt G6 «5 5600s nas eee 10

D.C. Superior Court Civil Rule 56 ....... 0.0 ccccsccce 10

Other Authorities:

Moore, FEDERAL PRACTICE (2d ed. 1979) ............. 3

Stern & Gressman, SUPREME COURT PRACTICE (5th ed.

197G) .. wc iceveseanekee eae be eee 11

ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-940

RALPH DE TOLEDANO,

Petitioner,

RALPH NADER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Ralph Nader respectfully requests that

this Court deny the petition for a writ of certiorari,

seeking review of the District of Columbia Court of

Appeals’ decision in this case.

1

2

REASONS FOR DENYING THE WRIT

1. This Court is without jurisdiction because

the decision below is not a final judgment or

decree.

The trial court granted summary judgment to peti-

tioner de Toledano and dismissed respondent’s libel

claim. The District of Columbia Court of Appeals

reversed and remanded the case for further proceedings

consistent with its opinion.! It held that “‘a jury triable

genuine issue of material fact existed.” Petition, Appen-

dix at 63a.

This Court’s jurisdiction on certiorari to the District of

Columbia Court of Appeals is limited to “final judgments

or decrees.” 28 U.S.C. § 1257. As this Court held in

Switzerland Cheese Association, Inc. v. E. Horne’s Market,

Inc., 385 U.S. 23, 25 (1966):

[T]he denial of a motion for summary judgment

because of unresolved issues of fact does not settle

or even tentatively decide anything about the merits

of the claim. It is strictly a pretrial order that

decides only one thing—that the case should go to

trial.?

Thus denial of summary judgment, at least when based

on the existence of a factual dispute, as in this case, is

not a final judgment.? Lack of finality is itself sufficient

'The summary judgment granted to de Toledano’s publisher,

Copley Press, Inc., was affirmed by the court below. Respondent

has not petitioned for a writ to review that determination.

*Switzerland Cheese held that a federal appellate court lacks

jurisdiction of an appeal under 28 U.S.C. § 1292(a) (1) from denial

of a summary judgment motion, even though the effect of the

denial was to “‘refuse’’ a permanent injunction.

3See Goldstein v. Cox, 396 U.S. 471, 475 (1970). Like Swit-

zerland Cheese, Goldstein involved an appeal from denial of

[footnote continued]

3

ground for denying the writ. Hamuilton-Brown Shoe

Company v. Wolf Brothers & Company, 240 U.S. 251

(1916).

In considering jurisdiction over state court judgments,

even though “further proceedings in the lower state

courts [are still] to come,” this Court has found finality

in four categories of cases. Cox Broadcasting Corpora-

tion v. Cohn, 420 U.S. 469, 477, 479-485 (1975). In the

first category are cases where trial is still to come, but the

federal issue is “conclusive or the outcome of further

proceedings preordained.” Jd. at 479. Thus, in Mills v.

Alabama, 384 U.S. 214 (1966), where a state supreme

court reinstated a criminal complaint and remanded the

case for trial, this Court accepted an appeal? because

editor Mills had admitted publishing an editorial of the

very sort proscribed by an Alabama statute. His trial

summary judgment for injunctive relief. It came to this Court on

appeal from a three-judge court pursuant to 28 U.S.C. §1253,

which is analogous to §1292(a)(1). Although both cases arose

under interlocutory appeal statutes, they illustrate the non-finality

of summary judgment denials. The lack of finality is even clearer

here, where no injunction is involved. See Village Voice, Inc. v.

Rinaldi, 423 U.S. 883 (1975), ee on reversal of

judgment “for want of a final judgment.”

pense of appeals have almost universally held that such

denials are not appealable final orders under 28 U.S.C. §1291. See

cases cited in 6 Moore, FEDERAL PRACTICE 4 56.2(2]nn.3, 6 (2d

ed. 1979). In Florian v. United States, 114 F.2d 990 (7th Cir.

1940), where the court of appeals entertained an appeal of a denial

of summary judgment, this Court reversed per curiam, 312 ye

656 (1941), “because of the absence of a final judgment in the

District Court.’ A fortiori, reversal of a defendant's summary

judgment should not be reviewable by this Court under § 1257.

See Cox Broadcasting Corp. v. Cohn, supra, at 502-03 (Rehnquist,

J., dissenting).

4Under §1257 finality is required for appeal as well as cer-

tiorari.

+

would have been “no more than a few formal gestures

leading inexorably towards a conviction,” after which

the case would have to ‘‘wind its weary way” back to the

Court for adjudication of the constitutional issue. 384

U.S. 217. Here, however, de Toledano, unlike Mills, has

raised numerous defenses, including the defense of truth

(Answer, R. 321-324), and the outcome of trial is

unpredictable.

The second category of cases whose finality was recog-

nized in Cox Broadcasting encompasses those, such as

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

(1945), where a state supreme court finally decides the

federal question and orders further proceedings, but the

federal question will survive the outcome of such pro-

ceedings and still require decision. In Radio Station

WOW, where the Nebraska Supreme Court ordered

transfer of the station’s properties, it rejected the claim

that the transfer would interfere with the station’s federal

license and remanded the case for an accounting. This

Court took jurisdiction because the state supreme court

had spoken its final word on the federal issue and the

accounting which it ordered was “dissociated”’ from that

issue. 326 U.S. at 126-27. Here, however, the D.C.

Court of Appeals has spoken no final word, and the

federal issue cannot be dissociated from the trial which

it ordered. The only decision below is that the factual

dispute on the question of actual malice cannot be

determined without a jury trial. Whether the federal

issue will survive the trial depends on the verdict. If

petitioner prevails, it will be unnecessary to decide the

federal issue.

The third category includes cases where, regardless of

the outcome of further state proceedings, the federal

issue cannot be reviewed later. Typical is a state supreme

5

court reversal of a conviction on constitutional grounds

with remand for a new trial. If the state secures a

second conviction, the federal issue is mooted; if the jury

acquits, the state cannot appeal. California v. Stewart,

384 U.S. 436, 498n.71 (1966). Similarly, in North

Dakota State Board of Pharmacy v. Snyder’s Drug

Stores, Inc., 414 U.S. 156 (1973), a state supreme court

held unconstitutional the statute under which the Board

denied a pharmacy permit and remanded the case for

further Board consideration. This Court granted cer-

tiorari because, regardless whether the Board were to

deny the permit on state grounds (thereby eliminating

the federal issue) or were to grant it (thereby eliminating

any appeal under state law), the federal issue would have

been foreclosed. Here, however, if the jury verdict were

to be in respondent’s favor, petitioner would have full

opportunity to raise again his federal question before

the D.C. Court of Appeals and, if unsuccessful there, to

petition for certiorari.®

The fourth category recognized in Cox Broadcasting

covers cases where a result favorable to petitioner in this

Court would preclude further litigation and refusal of

immediate review “‘might seriously erode federal policy,”

420 U.S. at 482-83. Here, to be sure, reinstatement of

summary judgment would end the case, but declining

immediate review will not erode any federal policy.

In Cox Broadcasting, the Georgia Supreme Court

rejected a constitutional attack on a statute prohibiting

publication of a rape victim’s name and remanded the

5Compare Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. at

511-12 (Rehnquist, J., dissenting), concerning the then pending

petition in Time, Inc. v. Firestone, with the subsequent grant of

that petition, 421 U.S. 909, and the opinions on the merits, which

suggest no jurisdictional problem, 424 U.S. 448 (1976).

6

case for trial. This Court entertained an appeal because

the constitutional issue was not subject to further review

in Georgia, and even if the appellants were to prevail at

trial, the state supreme court decision banning publi-

cation of a rape victim’s name would still stand. This |

would leave the Georgia press “operating in the shadow

of criminal and civil sanctions.” 420 U.S. at 486. Here

the court below created no such situation. Its decision

upheld no statute and proclaimed no policy adversely

affecting First Amendment rights. It held “only that

based on the record as it existed before the trial court,

a jury triable genuine issue of material fact existed.”

Petition, Appendix at 63a.

In Miam: Herald Publishing Company v. Tornillo, 418

U.S. 241 (1974), the Florida Supreme Court upheld the

constitutionality of a statute requiring newspapers to

print replies to published criticisms of political candidates

and remanded the case for trial. This Court granted

review because it found that the constitutionality of the

right-of-reply statute was of overriding importance and

that, in light of the upcoming 1974 elections, the need

for decision was especially urgent. 418 U.S. at 247n.6.

No such considerations are present here.

Other cases in the fourth category have likewise

involved extraordinary considerations of federal policy

that are not present here. Hudson Distributors, Inc. v.

Eli Lily & Company, 377 U.S. 386 (1964), concerned the

compatibility of state fair trade acts with federal antitrust

laws; Mercantile National Bank v. Langdeau, 371 U.S.

555 (1963), concerned the erosion, by suits in state

courts, of the federal statutory policy controlling the

venue of suits against national banks; and Construction

Laborers v. Curry, 371 U.S. 542 (1963), concerned state-

court attempts to adjudicate labor disputes that were

within the exclusive province of the NLRB.

7

The decision below threatens no federal policy affect-

ing freedom of the press; it contains no last word for

the District of Columbia on any constitutional issue.® In

short, it is not a final judgment.

2. The decision below does not conflict with

this Court’s decision in Time, Inc. v. Pape.

The petitioner’s contention that the decision below

conflicts with Time, Inc. v. Pape, 401 U.S. 279 (1971),

is based on a misconception of the Pape decision and of

this Court’s role in judicial review.

Pape did not come to this Court from a reversal of the

defendant’s summary judgment. There the trial court

granted the defendant dismissal or summary judgment

twice, once before and once after this Court’s decision

in New York Times Company v. Sullivan, 376 U.S. 254

(1964); both times the Seventh Circuit reversed and

remanded for trial; both times this Court denied cer-

tiorari. 375 U.S. 902 (1963); 384 U.S. 909 (1966). Not

until after trial and after the court of appeals reversed a

directed verdict for the defendant did this Court grant

certiorari. See 401 U.S. 283. The procedures in Pape

’ lend no support for certiorari here. On the contrary, this

Court s double denial of certiorari when Pape was in the

posture of this case argues against review at this early

stage.

Moreover, on the merits Pape is inapposite. In Pape

the asserted libel was Time’s omission of the word

“alleged” from its account of a Civil Rights Commission

report that described police violence in Chicago. The

©The decision below does decide that the Seventh Amendment

requires a jury trial of the disputed facts, but that point is not

raised in the petition and in any event is correctly decided (c/.

Cox Broadcasting, supra, 420 U.S. at 480n.13).

8

plaintiff claimed the omission made it appear that the

Commission had made factual findings, when it was

merely reciting allegations. This Court held the omission

constitutionally permissible as Time’s “adoption of one

of a number of possible rational interpretations of a

document that bristled with ambiguities.” 401 U.S.

at 290.

Here, the asserted libel was not an omission, but a

flat statement that Ralph Nader “falsified and distorted

evidence to make his case against the automobile.’’ On

deposition, de Toledano confirmed he meant just that:

“T intended to tell the reader that Mr. Nader lied and

twisted facts to make a case,” Petition, Appendix at 57a.

His column also told the reader that Senator Ribicoff

had conclusively demonstrated Nader’s dishonesty. The

subcommittee staff report on which de Toledano based

his accusation could reasonably be read as a finding that

Nader was mistaken about the Corvair, but not that

he falsified evidence. As the court below observed,

“Nowhere is it intimated that [Nader] falsified and

distorted evidence.” Jd. at 62a.

Petitioner knew very well that the staff report stated

that Nader’s charges against GM and the Corvair ‘“‘were

made in good faith based on the information available

to him.” (/d. at 55a-57a). Petitioner’s deliberate

contradiction of this statement raises a jury question of

actual malice.’ Time, Inc. v. Pape involved no such facts.

7The petition (at 3, 19) relies on the trial judge’s inference,

repeated by the dissent in the court below, that the staff report's

finding of Nader’s good faith was a “‘sugar coating for a bitter pill.”

Making that inference was impermissible not only because it was

unfavorable to the party opposing summary judgment, but because

it was judicial fact-finding in a jury case. E.g., Adickes v. S. H.

Kress & Co., 398 U.S. 144, 157-158 (1970).

9

3. The petition raises no novel or important

issue of press freedom.

Petitioner contends that the decision below departs

from the “constitutionally required standard of clear and

convincing proof of actual malice,” and therefore raises

important freedom-of-press issues. The contention is

untenable.

The court below did not depart from the convincing-

clarity standard; it adhered to it. Said the court (Peti-

tion, Appendix at 55a):

The question to be resolved at summary judgment

is whether plaintiff’s proof is sufficient such that a

reasonable jury could find malice with convincing

clarity, and not whether the trial judge is convinced

of the existence of actual malice. (Emphasis in

original.)

“Clear and convincing” is an evidentiary standard

which, as the court below properly observed, is interme-

diate between the ordinary civil standard of preponder-

ance of evidence and the criminal standard of proof

beyond reasonable doubt. Petition, Appendix at 53a.

The requirement of convincing clarity in libel actions is

itself the special safeguard that protects First Amend-

ment rights. :

Where the issue of malice is in genuine dispute, as it is

here, the question whether the libel plaintiff’s proof

meets the New York Times standard depends largely on

the jury’s assessment of the demeanor of witnesses. A

trial judge who attempts to decide whether proof is

convincingly clear invades the province of the jury. The

10 | 7 11

court below properly concluded (Petition, Appendix at Court. As stated in Stern & Gressman, SuPREME Court

54a): PRACTICE 297-98 (5th ed. 1978):

[T]he special protection afforded press defendants

in public figure libel actions [by the clear-and-

convincing-evidence standard] does not necessitate

a dilution of the Seventh Amendment by skewing

the roles of judge and jury in summary judgment

proceedings. It is engrained in American juris-

prudence that the court may not resolve issues of

fact or weigh evidence at the summary judgment

stage in normal circumstances. We hold that the

It has been reiterated many times that the Su-

preme Court is not primarily concerned with the

correction of errors in lower court decisions. * * *

The Supreme Court’s burden and responsibility are

too great to permit it to review and correct every

misstep made by the lower courts in the application

of accepted principles. Hence the Court generally

will not grant certiorari just because the decision

below may be erroneous. * * * (Footnote omitted.)

same principles applicable to normal summary

judgment motions are applicable to such motions

when made in a public figure libel action.

Even if the decision below were erroneous, its lack of

finality makes it a poor candidate for review merely to

correct error.

Adherence to normal summary judgment procedures *®

involves no impairment of press freedom. This Court CONCLUSION

has not regarded summary judgment in public-figure

libel cases to be “the rule rather than the exception.”

Hutchinson v. Proxmire, _ U.S. —_—, 99 S.Ct. 2675,

2680 and n.9 (1979). The Court there said:

[W]e are constrained to express some doubt about

the so-called “rule.” The proof of “actual malice”

calls a defendant’s state of mind into question Merssaet Nuessauu

. [citation omitted] and does not readily lend itself aie

to summary disposition.

The petition for a writ of certiorari should be denied.

Respectfully submitted,

RONALD G. PRECUP

LUCIEN HILMER

Petitioner’s Conclusion, recognizing that this case is NUSSBAUM & OWEN

hardly in a posture for the Court to “elucidate its views’’ 1800 M Street. N.W.

about summary judgment in libel cases, alternatively | Wedhineton D.C. 20036

seeks summary reversal on the authority of Time, Inc. v. (202) 833-8910

Pape. As shown above, that case does not control this

one. Moreover, petitioner misconceives the role of this Counsel for Respondent

January 14, 1980

8D.C. Superior Court Civil Rule 56, Summary Judgment, is

identical to Fed. R. Civ. P. 56.