Petition — Advertiser Co. v. Fulton
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Supreme Court, U.S,
80-830 FILED
NOV 24 1960
No. |
stetainiiaaacanneaieelliaiiaia JR., CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
THE ADVERTISER COMPANY,
Petitioner,
V.
DavipD H. FULTON and WILLIAM B. Wyartrt,
Respondents. Ty.
PETITION FOR A WRIT OF CERTIORARI
To The Supreme Court of Alabama
STEINER, CRUM & BAKER M. ROLAND NACHMAN, JR.
P. O. Box 668 P. O. Box 668
Montgomery, AL 36101 Montgomery, AL 36101
(205) 834-2222
Counsel of Record
for Petitioner
WYCHE, BURGESS, FREEMAN Davip L. FREEMAN
AND PARHAM P. O. Box 10207
P. O. Box 10207 Greenville, S.C. 29603
Greenville, S.C. 29603
Counsel for Petitioner
Of Counsel
St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477
QUESTIONS PRESENTED FOR REVIEW’
1. Whether, consistently with the guarantees of freedom of
the press in the First Amendment as embodied in the Four-
teenth, a state’s highest court may reverse a summary libel judg-
ment in favor of a newspaper and against a public official on the
ground that a ‘‘glimmer, spark or scintilla of evidence’’ is suffi-
cient to create a triable issue of fact as to whether the
newspaper’s publication, if false, was with knowledge of falsity
or reckless disregard of whether false or not?
2. Whether, consistently with the constitutional guaranties
and in the circumstances described in question 1, a state’s
highest court may hold that the failure of a newspaper to make
an independent investigation as to the truth or falsity of
statements made by a state cabinet officer in a news conference,
before publishing them, is sufficient to create a triable issue of
fact as to whether the newspaper’s publication, if false, was
with knowledge of falsity or reckless disregard of whether false
or not?
3. Whether, consistently with the constitutional guaranties
described in question 1, in a defamation action brought against
a newspaper, a state’s highest court must determine whether the
plaintiff is a public official or public figure within the federal
rule of libel and as defined in a uniform manner consistent with
the constitutional protection of free speech and press
guaranteed by the federal rule enunciated in New York Times v.
Sullivan, 376 U.S. 254?
' The parties to the proceedings in the Supreme Court of Alabama
were: David H. Fulton and William B. Wyatt, Appellants there and
Respondents here; and Petitioner, The Advertiser Company and
David G. Bronner, Appellees there.
ii
4. Whether, consistently with the constitutional guaranties
and in the circumstances described in question 1, summary
judgment in favor of a newspaper is essential to safeguard
freedom of the press from the chilling effect of a spurious libel
suit—supportable, if at all, by a flicker, gleam or scintilla of
evidence?
iii
TABLE OF CONTENTS
Questions Pressented for Review ..........ccseseeees
IE 3. eckn bacdsvn hea ea deteda pean teen
en eS, Ee aD on a UG dai
Constitutional Provisions Invoked ................56.
Es oon viv ccc ceed nahi eb eee seens
Reasons for Granting the Writ ...........cceeeecsees
II,
Il.
IV.
The Application of Alabama’s Scintilla Rule
in This Case Violates Freedom of the Press...
The Requirement That a Newspaper Make an
Independent Investigation Before Reporting
Statements of a State Cabinet Officer in a
News Conference Violates Freedom of the
A Judicial Failure to Determine Whether a
Libel Plaintiff is a Public Official or Public
Figure Under a Uniform Constitutional Test
Violates Freedom of the Press .............
Freedom of the Press Mandates Summary
PL Ss aga Resear ch 464 won ed wena
CN i 5 ad's eee ok eT ks ae bac kiees
APPENDIX A (Opinion of Supreme Court of Ala-
Ne bc) a dats dsets eee eececenecercceseccees
APPENDIX B (Opinion and Judgment of Trial Court) .
APPENDIX C (Exerpts from Affidavit of David G.
IIIS bé-ve ana Kha Meecha eee Ieee ee kak ean
12
13
16
17
A-l
A-14
iv
TABLE OF AUTHORITIES
Cases
American Benefit Life Ins. Co. v. McIntyre, (Ala.) 375
BG i oc kd Nias eee Men oe 8k CAS
ee Vi. ROMs Br Wietle BE 6 vo vnecceteeceswccecss
Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140.......
Bishop v. Wometco Enterprises Inc., 235 So.2d 759....
Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (Sth
Cals PAs kb uatiahs Ouse ind eaet bb epranca ves
Brady v. Southern Ry. Co., 320 U.S. 476.............
Brown v. Kitterman, 443 S.W.2d 146 ............0056.
Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972)
COE Se has BE . o.k oc cdieweewdeck deca
Chase v. Daily Record, Inc., 83 Wash.2d 37, 515 P.2d
ooo rr
Coursey v. Greater Niles Tp. Publishing Corp., 40 IIl.2d
Sis MOET i.vurus ccc cceedenvannaseus)
Doctors Convalescent Center, Inc. v. East Shore News-
papers, Inc., 104 Ill. App.2d 271, 244 N.E.2d 373 .
Fadell v. Minneapolis Star & Tribune Co., 557 F.2d 107
(7th Cir. 1957) cert. denied 434 U.S. 966 .........
Gertz v. Robert Welch, 418 U.S. 323...............5.
Guitar v. Westinghouse Electric Corp., 396 F. Supp.
Ses OR Bo ee a eh ec skdencdekocndenvews
Hanson v. Couch, (Ala.) 360 So.2d 942 .............. 7)
L. & N. R. Co. v. Grizzard, 238 Ala. 49, 189 So. 203 ... 10
L. & N. R. Co. v. Steel, 257 Ala. 474, 59 So.2d 664..... 10
L. & N. R. Co. v. Green, 255 Ala. 642, 53 So.2d 358 ... 10
MacNeil v. Columbia Broadcasting System, Inc., 66
PGE bib Cnc Aceon Cab aus eakneas Utkerenee see 15
Meerpol v. Nizer, 381 F.Supp. 29, (S.D.N.Y. 1974) .... 16
Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241...... 3
Miller v. News Syndicate Co., 445 F.2d 356 (2d Cir.
Rtn cease bus eviaticakecsereneee eens 16
Mobile Press Register v. Faulkner, (Ala.) 372 So.2d
rer errr, it epee me re Lt 3,4
Monitor Patriot Co. v. Roy, 401 U.S. 265 ............ 12
New York Times v. Sullivan, 376 U.S. 254 (1964) .3,4,7,8,10,12,
13,14,15,16
Ocala Star-Banner Co. v. Damron, 401 U.S. 295 ...... 12
Perry v. Columbia Broadcasting System, Inc., 499 F.2d
797 (7th Cir.) cert. denied, 419 U.S. 883.......... 16
See B.S, DE lads OP a. 0.0ckeus Cnwscdeovennde 4,7,14
Ross v. News Journal Co., 228 A.2d 531 ............. 15
Ryan v. Dionne, 28 Conn. Sup. 35, 248 A.2d 583 ...... 15
St. Amant v. Thompson, 390 U.S. 727 ............... 8,13,15
Standke v. B. E. Darby & Sons, Inc., 193 N.W.2d 139.. 15
Silbowitz v. Lepper, 32 App. Div2d 520, 299 N.Y.S.2d
vi
Tagawa v. Maui Publishing Co., 448 P.2d 337 ........ 15
Thompson v. Evening Star Newspaper Co., 129 U.S.
App. D.C. 299, 394 F.2d 774 cert. denied, 393 U.S.
RE EP EEL ee PO arene) ea grea 16
Time, Inc. v. McLaney, 406 F.2d 565 (Sth Cir.), cert.
SE OU aia nb b odiand ka edge eceawes 16
: eee Ue UR OD See eri 3,11,15
Tunnell v. Edwardsville Intelligence, Inc., 99 Ill. App.
a, Es sc ohsch beww bet sucslothhanns 15
Vintage Enterprises, Inc. v. Cash, (Ala.) 348 So.2d 476 . 9
Washington Post Co. v. Keogh, 365 F.2d 965 (1966),
Rs NE Be Wc FONE be cvce de ceddeccmeaens 16
Statutes
ss SE Le kaeeabeaebaceus cs 9
SP I ED BOER wiceccyeeswestensvcsceeses 9
Miscellaneous
Restatement of the Law, Torts 2nd, p. 152............ 10
Restatement of the Law, Torts 2nd, S580A(f), p. 220.... 11
IX Wigmore on Evidence, §2492 .............0 cee eee 9
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
THE ADVERTISER COMPANY,
Petitioner,
V.
Davip H. FULTON and WILLIAM B. WYATT,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
To The Supreme Court of Alabama
OPINIONS BELOW
The opinion of The Supreme Court of Alabama is reported at
14 Alabama Bar Reporter 2651 and appears as Appendix A
hereto; the opinion of the trial court, the Circuit Court of Mont-
gomery County, Alabama of October 30, 1979, appears as Ap-
pendix B hereto.
JURISDICTION
The judgment of the Supreme Court of Alabama was entered
on September 19, 1980. This petition for certiorari was filed
within ninety (90) days of that date. This Court’s jurisdiction is
invoked under 28 U.S.C. § 1257(3).
ses A al
CONSTITUTIONAL PROVISIONS INVOKED
Amendment I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
Amendment XIV
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.
STATEMENT OF THE CASE
The judgment of the Supreme Court of Alabama in these
consolidated defamation actions reversed a summary judgment
of the Circuit Court of Montgomery County (‘‘trial court’’) in
favor of petitioner, a newspaper publisher (‘‘Advertiser’’) and a
co-defendant, one David G. Bronner, then Finance Director of
the State of Alabama.' Respondent Wyatt, recently discharged
deputy director of the State Building Commission of Alabama
(‘‘Commission’’), had brought a libel action against Advertiser
seeking compensatory damages of $100,000 and punitive
damages of $1,500,000; and respondent Fulton, a recently
'A separate petition for certiorari is being filed contemporaneously
by Bronner.
~—, pee
discharged building inspector of the Commission, had brought
one seeking compensatory damages of $200,000 and punitive
damages of $2,000,000. The claims for libel, as will more fully
appear, arose out of Advertiser’s press coverage of a news con-
ference held by Bronner on May 29, 1979.? Although the sum-
mary judgment of the trial court was based upon Bronner’s
defense of qualified executive privilege, which the trial court
held ‘‘cloaked Advertiser as well since it was merely printing the
news as it found it,’’ among the other ‘‘numerous’’ defenses
asserted by Advertiser in its pretrial motions was that a sum-
mary judgment was essential to avoid the abridgment of Adver-
tiser’s freedom of the press guaranteed by the First and Four-
teenth Amendments. Moreover, in the court below, Advertiser
again asserted in its brief that the summary judgment entered by
the trial court was essential to avoid the abridgment of that
freedom, and that the judgment in its favor was mandated by
New York Times v. Sullivan, 376 U.S. 254, and its progeny.’
The Supreme Court of Alabama rejected this constitutional
assertion; reversed the summary judgment for Advertiser; and
remanded for trial what it deemed to be a genuine issue of
material fact. This case is ripe for review here. See Time, Inc. v.
Pape, 401 U.S. 279, 283-284, (where this Court reversed a judg-
ment of the Court of Appeals which had reversed the district
court’s grant of a directed verdict for the magazine); and Miami
Herald Pub. Co. v. Tornillo, 418 U.S. 241, 246-247.
*Respondent Wyatt sought compensatory damages against Bronner
of $100,000 and punitive damages of $1,000,000; and respondent
Fulton sought compensatory damages of $200,000 and punitive
damages of $2,000,000 against him.
*Advertiser’s brief in the court below contained the following:
**Although the trial court found it unnecessary to reach the
point, Bronner and Advertiser strongly urge here, as there, that
the current law of libel in Alabama, Mobile Press Register v.
Faulkner, (Ala.) 372 S.2d 1282, as mandated by New York
Times v. Sullivan, 376 U.S. 254 and its progeny, constitutionally
required the summary judgment below. Even if the statements
son ia
The nature of the alleged libel by Advertiser and of the ‘‘ge-
nuine issue’’ for trial involved the following circumstances.
Bronner, newly appointed Finance Director on March 14, 1979,
became by virtue of that appointment a member of the
Alabama Building Commission and chairman of a special com-
mittee charged with supervising the personnel and financial af-
fairs of the technical staff of the Commission.‘
Because of widespread complaints regarding long standing
mismanagement, one of Bronner’s earliest undertakings was an
investigation designed to evaluate these reports and the perform-
ance of the Commission and its technical staff and personnel.
Bronner, jointly with other public investigators, conducted an
extensive investigation into the activities and affairs of the Com-
mission, its director of technical staff, its deputy director
made by Bronner and reprinted in Advertiser had been false,
they are not actionable unless Bronner and Advertiser knew they
were false or made them with reckless disregard of whether they
were false or not.
“The Sullivan doctrine applies because Wyatt and Fulton
were public officials; and because, even if they were not, they
seek punitive damages. Gertz v. Robert Welch, 418 U.S. 323;
Mobile Press Register v. Faulkner, supra at 1284.
‘*The determination of whether a libel or slander plaintiff
is a public official or public figure is a question for the court.
Mobile Press Register v. Faulkner, supra at 1284. Wyatt as
deputy director of the State Building Commission is surely a
public official within the test of the leading case, Rosenbiatt v.
Baer, 383 U.S. 75; and building inspector Fulton is as much a
public official as the manager of a county ski lodge in
Rosenblatt. In Beckley v. Hanks, 389 U.S. 81 the clerk of a state
court was held to be a ‘“‘public official’? under the New York
Times rule. Many state and federal decisions accord.”’
‘The technical staff of the Commission reviewed all architectural
and construction agreements, architects statements, contractors
estimates, material statements and change orders relating to buildings
and capital improvements of the State of Alabama.
=<" on
(respondent Wyatt) and its employees. The investigation in-
cluding oral examinations under oath.
Bronner’s extensive, and uncontroverted affidavit (Appendix
C to this Petition) details the relevant results of this investiga-
tion. After it had been concluded, the Commission discharged
the Director of Technical Staff, one Hugh Adams; its deputy
director, respondent Wyatt; three building inspectors, respon-
dent, Fulton, Allen and Martin; and one other employee.
Thereafter, Adams and Martin filed slander actions against
Bronner; and Wyatt and Fulton filed these actions. Subsequent-
ly, Adams pleaded guilty to a criminal indictment for perjurious
grand jury testimony that ‘‘he never received any monetary
payments in the building industry;’’ and he dismissed his action.
Martin did not appeal from a summary judgment in favor of
Bronner.
As recited in the opinion of the court below, on May 239,
1979, Bronner conducted a press conference which was covered
by Advertiser. Its news story, which is the basis of respondents’
libel actions, is quoted in pertinent part in the opinion below, as
is Bronner’s written press release. Although the written press
release and the oral portions of the news conference concerned
directly the stated results of Bronner’s investigation into the ac-
tivities and management of the Commission, including a
thorough review of the qualifications and past performance of
the Commission personnel; and although the Advertiser news
story quoted extensively from the written press release, and ob-
viously dealt, even if not exclusively, with the qualifications and
past performance of the discharged personnel, the Supreme
Court of Alabama, nevertheless, found a genuine issue for trial
of these multimillion dollar defamation actions solely because
the precise words ‘‘qualifications and performance’’ did not ap-
pear in the news article. (Ms. 17) Moreover, that court below
imposed upon Advertiser the duty of making an ‘‘independent
investigation as to the truth or falsity of Bronner’s statements.”’
([bid.)
~
Advertiser, without dispute, accurately reported a news con-
ference of a, highly placed state cabinet official, Bronner, con-
cerning the results of a thorough investigation which had
disclosed prior mismanagement and more in an important state
agency.
Respondent, Wyatt—the deputy director with significant
supervisory duties over the state agency during the period in-
volved and the subject as well of sworn testimony of miscon-
duct—and respondent, Fulton—whose performance as one of
too many building inspectors was subpar—were unable to meet
the extensive Bronner affidavit (Appendix C) or even those por-
tions specifically directed to them. Instead, their affidavits
recited that they were not guilty of any of the accusations made
against them and that they had performed their duties in a good
and professional manner and had never been subjected to
discipline or criticism. And their affidavits contained irrelevant
assertions that they had committed no crimes; had never receiv-
ed any kickbacks or illegal payments; that they had never been
subjected to prior criticism and had no reason to believe that
there was dissatisfaction with their performances; that they had
not been informed that an investigation was being directed at
them; and that they knew of no persons on the Commission
who were taking bribes or kickbacks or illegal payments.
— 2
REASONS FOR GRANTING THE WRIT
More than 16 years ago, because Alabama’s libel laws abridged
freedom of the press, this Court cast aside this impermissible in-
fringement and adopted a new ‘‘federal rule’’ of libel. New
York Times v. Sullivan, 376 U.S. 254, 279-280:
The constitutional guarantees require, we think, a
federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with
‘actual malice’—that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.
Because Alabama has applied its so-called ‘‘scintilla rule’’ to
libel actions brought by public officials or public figures against
newspapers in these circumstances; because, moreover,
Alabama imposes a requirement that a newspaper make an in-
dependent investigation of the statements which it has reported
about such public officials, even, as in the case at bar, reports of
statements made in a public news conference by a highly placed
cabinet official; because the Alabama Supreme Court has refused
to make a determination of who is a public official or a public
figure as required by a concomitant uniform constitutional stan-
dard;* and because, in so doing, the court below has decided
these critical federal questions in a way which conflicts with
New York Times v. Sullivan and all of its progeny to date, it is
imperative that this Court address and overturn the renewed re-
jection by the Supreme Court of Alabama of the «nstitutional
guaranties enshrined in these decisions of this Court as essential
to freedom of the press.
* Rosenblatt v. Baer, 383 U.S. 75, 84 et seq.
a en
I.
The Application Of Alabama’s Scintilla Rule
In This Case Violates Freedom Of The Press.
This Court in New York Times v. Sullivan, 376 U.S. at
285-286, held that proof of malice under the federal rule of libel
must be with ‘‘the convincing clarity which the constitutional
standard demands. . .’’ Moreover, ‘‘there must be sufficient
evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication.”’
St. Amant v. Thompson, 390 U.S. 727, 731.
The court below, however, has reversed a summary judgment
for this newspaper presumably on the theory that absence of the
words ‘‘qualifications and performance’’ from a news article
otherwise containing an altogether accurate reporting of a news
conference held by a highly placed state official, meets the
burden of proof by convincing clarity that this newspaper in
fact entertained serious doubts as to the truth of its publication.
Such an absurdity can perhaps be explained—if at all—by the
application of Alabama’s ‘“‘scintilla rule’ to this libel case.
(Opinion Below, Ms. 12-14) As the court below recently ex-
plained in another libel case, American Benefit Life Ins. Co. v.
McIntyre, 375 So.2d 239, 246 (Ala. 1979):
We hold from the materials before it that the trial court
at the very least should have gleaned a glimmer, spark or
scintilla of evidence which would present a triable issue of
fact over whether the statements were published with
knowledge of their falsity or with reckless disregard of
whether they were false or not.
And the court below there went on to hold that New York
Times v. Sullivan does not ‘‘require the application of a clear
and convincing evidence test on a motion for summary judg-
ment when the plaintiff is a public figure.’’ (375 So.2d at 249)
a
The pervasiveness of the Alabama scintilla rule does not end
at summary judgment. Its gleam and glimmer provide ‘‘the
standard by which the trial judge must determine the propriety
of granting a motion for directed verdict;’’® and, if a jury
returns a verdict for a plaintiff on such a scintilla of evidence, a
judgment notwithstanding the verdict ‘‘should be denied if
there is any conflict in the evidence for the jury to resolve and
the existence of such conflict is to be determined by the scintilla
rule.’’’ Only a new trial may be granted in these circumstances;
and, under a recently reenacted Alabama statute:
‘*No more than two trials can be granted the same party in
any cause of action.’’®
There is no way that Alabama’s scintilla rule—the underpinn-
ing of the judgment below which reversed a summary judgment
for this newspaper—can meet the constitutional requirement of
this Court that malice under the federal constitutional law of
libel must be proven by convincing clarity. ‘‘Convincing
clarity’’ and a ‘‘gleam or glimmer’’ of evidence are simply con-
tradicitions in terms.
In Brady v. Southern Ry. Co., 320 U.S. 476, this Court re-
jected North Carolina’s scintilla of evidence rule in actions
brought under the Federal Employers’ Liability Act.’ It held
that a ‘‘uniform federal rule as to the necessary amount of
evidence’’ was essential if litigants under the Act were to receive
similar treatment throughout the country:
* Vintage Enterprises Inc. v. Cash, 348 So.2d 476, 478 (Ala. 1977).
” Hanson v. Couch, 360 So.2d 942, 944 (Ala. 1978).
* §6-8-104, Alabama Code 1975. Apparently Alabama and South
Carolina are the only states which have retained the scintilla rule. [X
Wigmore on Evidence, § 2492.
* 45 U.S.C.A. §51 et seq.
<—_ oa
[W]hen a state’s jury system requires the court to deter-
mine the sufficiency of the evidence to support a finding of
a federal right to recover, the correctness of its ruling is a
federal question. The weight of the evidence under the
Employers’ Liability Act must be more than a scintilla
before the case may be properly left to the discretion of the
trier of fact—in this case, the jury. (Cit.) When the evidence
is such that without weighing the credibility of the
witnesses there can be but one reasonable conclusion as to
the verdict, the court should determine the proceeding by
non-suit directed verdict or otherwise in accordance with
the applicable practice without submission to the jury, or
by judgment notwithstanding the verdict. By such direc-
tion of the trial the result is saved from the mischance of
speculation over legally unfounded claims. (320 U.S. at
479-80)'°
A fortiori Alabama’s scintilla rule must bow to the constitu-
tional requirement which impelled the federal rule of libel enun-
ciated in New York Times v. Sullivan, and the accompanying
constitutional test for meeting the constitutional standard
demanded by this constitutional rule.
The American Law Institute and the authors of the Restate-
ment of the Law, Torts 2nd waited more than ten years after
New York Times v. Sullivan to restate the law of defamation.
Their reason was:''
'© The Alabama Supreme Court has bowed without difficulty to the
elimination of its scintilla rule in suits under the federal act. L. & N.
R. Co. v. Grizzard, 238 Ala. 49, 54-55, 189 So. 203; L. & N. R. Co. v.
Steel, 257 Ala. 474, 478-479, 59 So.2d 664; L. & N. R. Co. v. Green,
255 Ala. 642, 646-647, 53 So.2d 358.
'' Restatement of the Law, Torts 2nd, p. 152.
The institute does not refrain from the process of
restating an area of the law because of the circumstance
that it is in the process of undergoing substantial change.
Instead, it has sought to anticipate the further develop-
ment of the decisions and to analyze the logical implica-
tions of the newly developed principle. In the situation
here involved, however, there is a material difference.
Here, one court, the Supreme Court of the United States,
has the final word, and its decision is binding on all of the
state courts as a matter of constitutional law. A section of
the Restatement that does not accord with an existing or
later decision of the Supreme Court is simply wrong, and
no amount of authority from other courts can make it ac-
curate. For this reason, the Institute has deferred as long as
feasible the restatement of the chapters on defamation, in
the hope that new decisions of the Supreme Court would
settle uncertain issues. In the decade since the New York
Times case, the Court was struggling to determine and set
forth the evolving constitutional law on the subject. (Em-
phasis supplied.)
On the question of the weight of the evidence, the uniform
law of the land is:"?
Not only does the plaintiff have the burden of raising the
issue of knowledge or reckless disregard and of proving
that the defendant’s conduct was outside the scope of the
constitutional protection, but the proof must be ‘with con-
vincing clarity.’ This requirement, also described as one of
‘clear and convincing proof,’ is held to be imposed by the
Constitution. (Emphasis supplied.)
The decision below conflicts with Time, Inc. v. Pape, 401
U.S. 279. There this Court determined that evidence of the
'> Restatement of Torts 2nd, 580A(f), p. 220.
ay gon
omission of the word ‘‘alleged’’ from a magazine story based
upon a government report was insufficient, as a matter of law,
to support a finding of knowing or reckless falsity. '‘
The decision below conflicts as well with other decisions of
this Court. Ocala Star-Banner Co. v. Damron, 401 U.S. 295,
300, reversed a libel judgment based upon a false news story
that a candidate for tax assessor had been charged in a federal
court with perjury, when in fact the candidate’s brother was
the one who had been so charged:
Since the [plaintiff] was permitted to recover without a
finding that the newspaper either knew the article was false
or published it in reckless disregard of its truth or falsity,
the judgment must be reversed unless there is some basis
for saying that the rule of New York Times does not apply
to the particular libel in question.
In Monitor Patriot Co. v. Roy, 401 U.S. 265, 272—reversing
on the same day another libel judgment against a
newpaper—this Court reiterated ‘‘the stringent standard of
knowing falsehood or reckless disregard of the truth. . .”’
ll.
The Requirement That A Newspaper Make An Independent
Investigation Before Reporting Statements Of A State
Cabinet Officer In A News Conference Violates
Freedom of the Press.
The decision of the Alabama Supreme Court conflicts with
New York Times v. Sullivan and its progeny in its requirement
that Advertiser make an ‘‘independent investigation as to
'* This Court reversed a judgment of the Court of Appeals which
had reversed the district court’s grant of a directed verdict for the
magazine. 401 U.S. at 283-284.
re, pe
the truth or falsity’’ of Bronner’s statements. (Ms. 17) For New
York Times v. Sullivan, 376 U.S. at 287-288, held that a
newspaper’s failure to check the accuracy of an advertisement
against news stories in its own files did not establish reckless
disregard for the truth.'°
Moreover, this Court in St. Amant v. Thompson, 390 U.S.
727, 731, reversed a state libel judgment because of a finding of
malice based upon a failure to investigate. It adopted, instead, a
constitutional test which equates reckless disregard for truth
with subjective awareness of probable falsity, namely, ‘‘serious
doubts [by defendant] as to the truth of his publication.’’ In
short, unless there is a ‘‘high degree of awareness of probable
falsity,’’ there can be no finding of malice, in the constitutionally
required sense, arising out of a failure to investigate before
publishing. (Ibid.)
Ill.
A Judicial Failure To Determine Whether A Libel
Plaintiff Is A Public Official Or Public
Figure Under A Uniform Constitutional Test
Violates Freedom Of The Press.
Although the court below held that a judicial determination
of whether the plaintiffs were public officials or public figures is
‘‘mandatory’’, it declined to make this determination, and held
instead ‘‘that the trial court erred in failing to make this initial
determination.’’ (Ms. 12) The court below has thus decided a
federal question in a way in conflict with applicable decisions of
this Court. The doctrine of New York Times v. Sullivan, 376
U.S. 254, applies because respondents Wyatt and Fulton were
public officials; and, indeed, even if they were not, because they
seek $3,500,000 in punitive damages from Advertiser. Gertz v.
Welch, 418 U.S. 323, 350:
'S See this Court’s analysis in Gertz v. Welch, 418 U.S. 323, 334, n.
6.
a" pen
In short, the private defamation plaintiff who
establishes liability under a less demanding standard than
that stated by New York Times may recover only such
damages as are sufficient to compensate him for actual
injury.
This Court held in Rosenblatt v. Baer, 383 U.S. 75, 84, that
the question of whether a defamation plaintiff is a public of-
ficial within the federal rule of New York Times v. Sullivan
should not be answered by reference to state-law standards; that
the constitutional protections afforded by New York Times may
not vary from state to state; and that, accordingly, ‘‘public of-
ficials’’ must be defined in a uniform manner consistent with
the constitutional protection of free speech and press
guaranteed by the federal rule enunciated in New York Times.
Surely such a critical constitutional determination may not be
ignored by a state’s highest court in a multimillion dollar
defamation action. And this Court in New York Times v.
Sullivan, 376 U.S. at 284-285, has made it plain that:
[Cjonsiderations of effective judicial administration re-
quire us to review the evidence in the present record to
determine whether it could constitutionally support a judg-
ment for respondent. This Court’s duty is not limited to
the elaboration of constitutional principles; we must also
in proper cases review the evidence to make certain that
those principles have been constitutionally applied.
Indeed, this Court has held that the manager of a ski lodge, '*
the clerk of a state court,'’ a police commissioner,'* a deputy
'® Rosenblatt v. Baer, 383 U.S. 75.
'’ Beckley Newspapers v. Hanks, 389 U.S. 81.
'* New_York Times v. Sullivan, 376 U.S. 254.
on
sheriff,'? and a deputy chief of detectives?’ are ‘‘public of-
ficials’’ within the holding of New York Times.
Wyatt, as deputy director of the State Building Commission
and building inspector Fulton are public officials within the
tests of the decisions of this Court. Many state and federal deci-
sions accord.?!
'® St. Amant v. Thompson, 390 U.S. 727.
20 Time, Inc. v. Pape, 401 U.S. 279, 284.
2! In the following cases the following plaintiffs were held to be
‘public officials’? within the New York Times rule: Ross v. News
Journal Co., 228 A.2d 531, (justice of the peace and his clerk);
MacNeil v. Columbia Broadcasting System, Inc., 66 FRD 22 (Marine
Corps officer participating in national security seminar in his official
capacity as spokesman for the Defense Department); Ryan v. Dionne,
28 Conn. Supp. 35, 248 A.2d 583 (city’s delinquent tax collector);
Bishop v. Wometco Enterprises Inc., 235 So.2d 759 (investigator who
was paid professional employee of city); Tagawa v. Maui Publishing
Co., 448 P.2d 337 (member of county board of supervisors); Coursey
v. Greater Niles Tp. Publishing Corp., 40 Ill.2d 257, 239 N.E.2d 837
(city patrolman); Tunnel! v. Edwardsville Intelligence, Inc., 99 Ill.
App.2d 1, 241 N.E.2d 28 (city attorney); Doctors Convalescent
Center, Inc. v. East Shore Newspapers, Inc., 104 Ill. App.2d 271, 244
N.E.2d 373 (nursing home licensed by state department of health, but
neither state-owned nor state-operated); Bienvenue v. Angelle, 254
La. 182, 223 So.2d 140 (parish director of public welfare); Cherry v.
Hall, 270 So.2d 626 (parish treasurer elected by police jury of parish);
Standke v. B. E. Darby & Sons, Inc., 193 N.W.2d 139 (grand jurors);
Brown v. Kitterman, 443 S.W.2d 146 (manager of community center);
Silbowitz v. Lepper, 32 App. Div2d 520, 299 N.Y.S.2d 564 (supervisor
and senior administrator of post office branch of New York City Post
Office Department); Chase v. Daily Record, Inc., 83 Wash.2d 37, 515
P.2d 154 (port district commissioner).
—_
IV.
Freedom Of The Press Mandates Summary Judgment.
The judgment below mocks the First Amendment guarantees
of free press and free speech and emasculates New York Times
v. Sullivan and other landmark decisions of this Court. It
demonstrates starkly why many courts have held that summary
judgments in favor of newspapers are essential to safeguard
freedom of the press from the chilling effect of spurious libel
suits—those supportable, if at all, by flickers, gleams or scin-
tillas of evidence.??
This case presents classic evil. Because Bronner did his duty
and investigated reports of prior mismanagement and worse in
an important state agency—and then acted on the basis of
sworn testimony—he was immediately subjected to multimillion
dollar slander suits by four agency employees who were
discharged. One of the four—the former director of the agen-
cy—has pleaded guilty to a criminal charge arising out of
payments from contractors, and has withdrawn his civil slander
action. Another, discharged for using a state automobile to
engage in political activities on state time while on the state
payroll, has not appealed from the summary dismissal of his
22 Fadell v. Minneapolis Star & Tribune Co., 557 F.2d 107 (7th Cir.
1957), cert. denied 434 U.S. 966; Bon Air Hotel, Inc. v. Time, Inc.,
426 F.2d 858 (Sth Cir. 1970); Time, Inc. v. McLaney, 406 F.2d 565
(Sth Cir.), cert. denied, 395 U.S. 992; Perry v. Columbia Broadcasting
System, Inc., 499 F.2d 797 (7th Cir.), cert. denied, 419 U.S. 883; Cer-
vantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied, 409
U.S. 1125; Miller v. News Syndicate Co., 445 F.2d 356 (2d Cir. 1971);
Thompson v. Evening Star Newspaper Co., 129 U.S. App. D.C. 299,
394 F.2d 774, cert. denied, 393 U.S. 884; Washington Post Co. v.
Keogh, 125 U.S. App. D.C. 32, 365 F.2d 965 (1966), cert. denied, 385
U.S. 1011; Meerpol v. Nizer, 381 F.Supp. 29, 32 (S.D.N.Y. 1974);
Guitar v. Westinghouse Electric Corp., 396 F. Supp. 1042 (S.D.N.Y.
1975).
~ |
case. But the court below has permitted respondent
Wyatt—deputy director with significant supervisory duties over
the agency during the period involved and the subject as well of
sworn testimony of misconduct, and respondent Fulton—whose
sub par performance as one of too many building inspectors has
already been described, to continue this baseless litigation
through indeterminate and costly state trial and appellate pro-
ceedings.
Summary judgmerts in favor of newspapers which publish
the result of such investigations into maladministration are
constitutionally required in order to relieve against the financial
burdens of expensive court proceedings, which, if unwarranted,
would offend the constitution by ‘‘chilling’’ the exercise of free
speech and press, and thus foreclosing this vital avenue of com-
munication to the public.
CONCLUSION
For the foregoing reasons it is respectfully submitted that this
Petition for a-Writ of Certiorari should be granted.
Respectfully submitted,
M. ROLAND NACHMAN, JR.
P. O. Box 668
Montgomery, Alabama 36101
Counsel of Record for Petitioner
DAVID L. FREEMAN
P. O. Box 10207
Greenville, South Carolina 29603
Counsel for Petitioner
APPENDIX
a
APPENDIX A
THE STATE OF ALABAMA - - JUDICIAL DEPARTMENT
THE SUPREME COURT OF ALABAMA
SPECIAL TERM, 1980
No. 79-217
David H. Fulton, et al.
v.
The Advertiser Company, et al.
Appeal from Montgomery Circuit Court
PER CURIAM.
This is an appeal from a summary judgment for defendants
The Advertiser Company and David Bronner in a defamation
suit seeking compensatory and punitive damages. We reverse
and remand.
Defendant David Bronner, Finance Director of the State of
Alabama and by virtue of that position a member of the State
of Alabama Building Commission, acting within his official
capacity as Chairman of the State Building Commission’s Ex-
ecutive Committee on Personnel and Finance, initiated an in-
vestigation into alleged abuses and misconduct within the Com-
mission. As a result of this investigation and the Committee’s
examination of the Commission, six Commission employees, in-
cluding plaintiffs William Wyatt, the Deputy Director of
Technical Staff, and David Fulton, a building inspector, were
fired.
With regard to these dismissals, defendant Bronner held a
press conference May 29, 1979, during which he issued a press
release, made some additional statements, and answered ques-
—
tions from members of the assembled press, which included a
representative of defendant Advertiser. The same day both
plaintiffs were notified of their dismissal by letters from the
Committee. On May 30, the Advertiser published an article in
its morning edition concerning the investigation and the
dismissals.
As a result of the press release, additional statements made
at the press conference, and the subsequent newspaper article,
Wyatt, Fulton and others not involved in this appeal filed
separate complaints seeking compensatory and punitive
damages for libel and slander against Bronner and the Adver-
tiser. Bronner and the Advertiser moved to dismiss on a number
of grounds. Certain of these grounds were denied and a hearing
was set on the remaining grounds. Affidavits were filed by both
sides and after arguments the trial court granted summary
judgments for both defendants. That court held that Bronner’s
statements were qualifiedly privileged and that there was no
evidence in the record indicating actual malice. Accordingly, the
court found that the Advertiser’s report of the press conference
was fair and that Bronner’s privilege also protected the
newspaper. Wyatt and Fulton appeal.
The basic issue presented by this case is whether summary
judgment was appropriate. Prior to any resolution of this issue,
however, an examination of the alleged defamatory statements
is necessary.
The press release issued by Bronner stated the following:
A financial investigation authorized by Title 41 of the
Code of Alabama has been conducted into the Alabama
Building Commission.
The investigation was conducted by the Examiners of
Public Account, the Department of Public Safety and the
Finance Office, which included taking sworn deposition
from employees of the Building Commission, architects,
contractors and testing firms from throughout Alabama.
sialic Sd
As a result of this financial investigation, evidence of
questionable activities and management was received
relating to the following:
(1) The utilization of state employees on state time to do
private business.
(2) The discovery of employees on the payroll who pro-
vided little or no service to the state.
(3) Allowing and/or initiating construction change orders
resulting in contractors receiving greater profits.
(4) The utilization of gratuities and/or agents in order to
secure state business.
Based on the information produced by the financial
investigation and a thorough review of the qualifications
and past performance of the present Building Commission
personnel, the ‘‘Personnel and Finance Committee”’ of the
Building Commission discharged six employees.
All results of the investigation will be turned over to
the Attorney General to be utilized as he sees fit.
In his affidavit, Bronner stated the following concerning his
comments at the press conference:
In response to a question, I gave the names of the six
employees referenced in the statement - names which in-
cluded plaintiffs Wyatt and Fulton... .
At no time did I state that any charges had been or
would be lodged against them. In fact, when asked by a
reporter what charges had been made against any specific
individuals, I answered, ‘‘What charges? I have made no
charges about anyone. As far as the Committee is concern-
ed, they were dismissed because of qualifications and per-
formance.”’
ae
The article published by the Advertiser in response to the
press conference reads, in pertinent part, as follows:
The director, deputy director and four other employ-
ees of the State Building Commission were fired Tuesday
in the wake of an investigation into mishandling of
building contracts and state work on private property.
Finance Director David Bronner said Building Com-
mission Director Hugh Adams, Deputy Director William
Wyatt, Energy Division chief John Cluck and three
building inspectors were fired by the commission’s ex-
ecutive committee after the investigation uncovered
widespread abuses in the department.
Bronner directed the six-week investigation by members
of the Examiners of Public Accounts, the Department of
Public Safety, and the Finance Department.
The results were turned over to Attorney General
Charlie Graddick for further investigation.
W.G. Stevenson, a professional engineer and veteran
employee of the commission, was appointed temporary
director of the department. Other vacancies will be filled
later, but Bronner said some of the vacancies will probably
remain unfilled.
The finance director said one of the fired building
inspectors had not turned in an inspection report in seven
years.
The dismissed inspectors were identified as David
Fulton, Ray Martin and Howard Wilson.
Bronner said the investigation uncovered evidence of
questionable activities and management in four areas:
—The use of state employees on state time to do private
business.
an
—The discovery of employees on the payroll who pro-
vided little or no service to the state.
—Allowing or initiating construction change orders
resulting in contractors receiving greater profits.
—The use of gratuities and agents in order to secure
state business.
Contractors and architects wanting ‘o do business with
the state were told they would have to get an agent with
political influence before they could get a state contract,
Bronner said. The contractor or architect negotiated with
the agent to use his influence, the finance director added.
But the contractors and architects who used agents in the
past would not be barred from doing business with the
state, he said.
‘*This is more a problem of the state than of the ar-
chitects and contractors,’’ he said. ‘‘They had to go
through the system, and the system was bad.’’
Bronner said in reply to questions that none of the
private work involved the new home of former Gov.
George Wallace or property of his relatives.
The finance director declined to answer when asked if
the private work involved property belonging to any of the
dismissed employees. |
Change orders were freely given with the result that con-
tractors couid bid low on a project and then add unbid
modifications to increase the price to a more profitable
level, he said.
The investigators examined commission activities over a
five- or six-year period during which contracts involving
millions of dollars in school and other building construc-
tion were issued.
—_ SY oe
... Wyatt was appointed to the commission staff as
deputy director in 1971.
... Bronner said the dismissed employees were not given
a chance to resign because they knew for at least two weeks
they were being investigated and had not resigned.
This article was accompanied by a headline in bold type which
stated: ‘‘Officials Fired Following Probe.’’
The letters of dismissal to both plaintiffs simply informed
them that the Committee had met ‘‘to review qualifications and
performance of Commission employees’’ and that their (plain-
tiffs’) employment had been thereby terminated.
In an action for defamation, an initial determination of the
status of the allegedly defamed person as a public official,
public figure, or a private individual must be made. E.g.,
American Benefit Life Ins. Co. v. McIntyre, 375 So. 2d 239
(Ala. 1979). This is a question of law for the trial judge.
Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed. 2d 597
(1966), Mobile Press Register, Inc. v. Faulkner, 372 So. 2d 1282
(Ala. 1979).
In Mobile Press Register, Inc., supra, this Court stated:
This issue [status] must be resolved first because the man-
ner of its resolution determines what elements of proof are
necessary for recovery. New York Times v. Sullivan, 376
U.S. 254, 84S. Ct. 710, 11 L.Ed. 2d 686 (1964), and its
progeny mandate that no public figure may recover com-
pensatory or punitive damages for libel unless actual
malice as defined in Sullivan is proved: a publication made
with actual knowledge of its falsity or made with reckless
disregard of its truth or falsity. If plaintiff be a private
figure, he or she need not prove Sullivan malice unless
punitive damages are claimed. Gertz v. Robert Welch,
Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed. 2d 789 (1974).
(footnotes omitted)
Pay H, eeee
As Justice Almon noted in the recent decision of Gray v.
WALA-TV, 384 So. 2d 1062 (Ala. 1980): ‘‘This actual malice
standard was further elaborated on in St. Amant v. Thompson,
390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed. 2d 262 (1968); there it was
stated that reckless disregard requires ‘‘...sufficient evidence to
permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of the publication.’’
Privilege is another issue which bears directly upon the issue
of proof of malice.
Bronner contends that the court below was correct in finding
that he was conditionally privileged to make public the results of
his department’s investigiation. The test in this jurisdiction for
determining whether a conditional privilege exists is as follows:
Where a party makes a communication, and such com-
munication is prompted by duty owed either to the public
or to a third party, or the communication is one in which
the party has an interest, and it is made to another having a
corresponding interest, the communication is privileged, if
made in good faith and without actual malice. ***The duty
under which the party is privileged to make the com-
munication need not be one having the force of legal
obligation, but it is sufficient if it is social or moral in its
nature and defendant in good faith believes he is acting in
pursuance thereof, although in fact he is mistaken.
Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117 (Ala.
1976), quoting Berry v. City of New York Ins. Co., 210 Ala.
369, 98 So. 290 (1923).
The question of whether a communication is privileged
by reason of its character or the occasion on which it was
made is a question of law for the judge.
Willis, supra.
<_<
Although the duties of the State Finance Director as set out in
Title 41, Code 1975, do not specifically include informing the
public of the results of statutorily prescribed investigations of
state departments and agencies, we conclude that this activity
comes within the penumbra of his official duties. The public has
a general interest in the results of investigations disclosing
governmental abuse or mismanagement. We, therefore, agree
with the trial judge’s determination that Bronner was cloaked
with a conditional privilege.
This Court has further stated that ‘‘[w]here a communication
is conditionally privileged, it is free from the legal imputation of
malice and is actionable only if there is actual malice.’’ Willis v.
Demopolis Nursing Home, Inc., supra.
It is unclear from the record as to how the trial judge viewed
the status of Wyatt and Fulton. As New York Times v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 2d 686 (1964), and its pro-
geny have mandated, the threshold question in a defamation
case is the determination of the status of the allegedly defamed
person as a public official, public figure or a private individual.
This issue must be resolved before the court can determine what
elements of proof of malice are required. The trial judge did not
address the issue of status, and instead, decided the case on the
basis of Bronner’s and the Advertiser’s qualified privilege. Cur
cases have held that once a qualified privilege has been found to
exist, the plaintiff must allege and prove actual or express
malice in order to recover. Browning v. Birmingham News, 348
So. 2d 455 (Ala. 1977); Willis v. Demopolis Nursing Home,
supra; O‘Barr v. Feist, 292 Ala. 440, 296 So. 2d 152 (1974).
Since Sullivan and its progeny have redefined actual malice in
defamation cases brought by public officials or public figures,
the reference to actual malice without further distinction has
caused a considerable amount of confusion and ambiguity in in-
terpretation and application of the two different standards of
malice. In this jurisdiction actual or express malice in its tradi-
—F
tional sense ‘‘may be shown by evidence of previous ill will,
hostility, threats, rivalry, other actions, former libels or
slanders, and the like ... or by the violence of the defendant’s
language, the mode and extent of publication, and the like.’’
Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1934).
Prior to Sullivan, the preceding standard of actual malice was
the only standard. Sullivan, however, redefined an old term to
require a new and more stringent standard of proof in com-
pliance with constitutional standards. ‘‘Actual malice’’ in its
constitutional sense, therefore, means ‘‘with knowledge that it
[the publication] was false or with reckless disregard of whether
it was false or not.’’ Sullivan.
It is apparent from the record that the trial judge fell prey to
the confusion created by the interchangeable use of the single
term ‘‘actual malice’’ to convey two separate concepts. The trial
judge stopped short of a crucial determination in failing to
reach the issue of the plaintiffs’ status, and held that ‘‘actual
malice’ in conjunction with the privilege defense need only be
shown in the traditional sense. Willis vy. Demopolis Nursing
Home, O’Barr v. Feist, Kenney v. Gurley. This would have
been correct prior to Sullivan and its progeny, whether the
plaintiffs were public or private persons, and still continues to
be correct as to private individual plaintiffs.
Subsequent to Sullivan, however, it is mandatory that the
plaintiff’s status be determined initially, in order to next deter-
mine whether traditional malice or Sullivan malice must be
shown. We hold, therefore, that the trial court erred in failing
to make this initial determination.
Finally, we reach the basic issue presented by this ap-
peal—whether summary judgment was appropriate under the
particular circumstances of this case. The law in this jurisdic-
tion, as set out below, is well settled as to the basic principles
which govern in a review of a grant or denial of summary judg-
ment.
— A-10 —
The party moving for summary judgment must clearly
show, i.e., has the burden to show, that the other party
could not recover ‘‘under any discernible circumstances.”’
Folmar vy. Montgomery Fair Company, Inc., 293 Ala. 686,
309 So. 2d 818 (1975); see also, Ray v. Midfield Park, Inc.,
293 Ala. 609, 308 So. 2d 686 (1975).
A motion for summary judgment may be granted only
when there is no genuine issue as ¢o a material fact and the
movant is entitled to judgment as a matter of law. Birm-
ingham Television Corporation v. Water Works, 292 Ala.
147, 290 So. 2d 636 (1974).
The moving party has ‘‘the burden of showing the
absence of a genuine issue as to any material fact, and for
these purposes the material it lodged must be viewed in the
light most favorable to the opposing party.’’ Adickes v.
Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed. 2d 142
(1970).
Likewise, we consider the ‘‘Scintilla Rule’’ in connection
with summary judgment. We held in Folmar v.
Montgomery Fair Company, Inc., supra, that if there is a
scintilla of evidence produced in plaintiff’s favor on the
issue of defendant’s negligence, then summary judgment
will not lie. As the majority of this Court pointed out
therein, the plaintiff might escape having summary judg-
ment rendered against him, yet still suffer the ignomy of
defeat by way of directed verdict.
Loveless v. Graddick, 295 Ala. 142, 325 So. 2d 137 (1975).
In Loveless, we also adopted with approval the following
statement by the U. S. District Court in Goldwater v. Ginzburg,
261 F. Supp. 784 (1966), aff’d 414 F.2d 324 (2nd Cir.), cert.
denied, 396 U. S. 1049, 90 S.Ct. 701, 24 L.Ed. 2d 695:
The issue of actual malice on the part of defendants seems
peculiarly inappropriate for disposition by summary judg-
— A-ll —
ment because it concerns ‘‘motive, intent, and subjective
feelings and reactions.”’
Bronner and the Advertiser, as the moving parties, had the
burden of proving the absence of a genuine issue as to any
material fact. We find that they failed to meet this burden.
In the press release (set out previously) Bronner listed four
categories of ‘‘questionable activities and management’’ which
were discovered as a result of the investigation. According to
Bronner’s own affidavit, however, of these four categories only
number two, the discovery of employees on the payroll who
provided little or no service to the state, applied to Fulton, and
only number four, the utilization of gratuities and/or agents in
order to secure state business, directly applied to Wyatt. Bron-
ner further stated, however, that because of Wyatt’s supervisory
position, ‘‘the responsibility of misconduct, inefficiency and
mismanagement attributable to employees under his supervision
which continued uncorrected by Wyatt, must be charged to
him.’’ In his affidavit, Bronner stated that: in response to a
press question he gave the names of the six Commission
employees who were fired; at no time did he make any charges
about anyone—to the contrary when asked what charges had
been made he responded ‘‘What charges? I have made no
charges... .’’; and as far as the committee was concerned the
dismissals were based on qualifications and performance.
In their affidavits, both Wyatt and Fulton denied that they
were guilty of any wrongdoing and stated that they were
unaware of any allegations or charges against them until they
read the newspaper article the morning following their
discharge. Both of their letters of dismissal merely stated that
their employment had been terminated based on qualifications
and performance. Also Wyatt stated: ‘‘I have personally
discussed my job performance with the defendant Bronner prior
to my dismissal. At no time did the defendant Bronner make
any accusation to me or state in any fashion that I had done
— A-12 —
anything wrong or that I was not performing my job respon-
sibilities in a satisfactory manner. In fact, his statements to me
were to the contrary.’’
Both contend that the article charged them with criminal ac-
tivity and that the average lay reader would have interpreted the
article to mean that each of the named dismissed employees was
guilty of all four categories of questionable activities. In
McGraw v. Thomason, 265 Ala. 635, 93 So. 2d 741 (1957), we
held:
In determining their actionable character, the printed
words are to be taken in their natural meaning, and ac-
cording to the sense in which they appear to have been used
and the idea they are adapted to convey to those who read
them. A forced construction is not to be put upon them in
order to relieve the defendant from liability, nor are they
to be subjected to the critical analysis of a trained legal
mind, but they must be construed and determined by the
natural and probable effect on the mind of the average lay
reader.
In light of the preceding authority we find that the article and
aecompanying headline presented a genuine issue as to a
material fact as to whether these words imputed criminal activi-
ty and guilt of all four categories of misconduct to both Wyatt
and Fulton. Loveless v. Graddick.
Furthermore, they (Wyatt and Fulton) contend that the
statements were false and the Bronner knew they were false
when he made them. Because of the preceding contradictions in
the affidavits of the parties, we find that there is a genuine issue
as to a material fact presented here. For these reasons summary
judgment was inappropriate for defendant Bronner.
As to defendant Advertiser, we find as did the trial judge,
that the Advertiser was protected by Bronner’s conditional
privilege to the extent that it reported fairly and accurately the
— A-13 —
information released at the press conference. We find, however,
that from the record before us a genuine issue as to a material
fact existed, making the grant of summary judgment for defen-
dant Advertiser also inappropriate. In American Benefit Life
Ins. Co. v. McIntyre, supra, we held that a news reporter’s
focusing upon particular portions of a financial report (con-
cerning plaintiff insurance company’s financial status) to the ex-
clusion of other relevant portions of the same report could pre-
sent a genuine issue of a material fact which should be resolved
trial. We find similar factual assertions in the record here. Bron-
ner states in his affidavit that he made it clearly known that the
employees were discharged because of qualifications and per-
formance; however, the words ‘‘qualifications and _ perfor-
mance’’ did not appear anywhere within the article, nor was
there any allusion to this reason for dismissal. Moreover, we do
not find in the record any evidence whereby it can be deter-
mined that the Advertiser made any independent investigation
as to the truth or falsity of Bronner’s statements.
REVERSED AND REMANDED.
Torbert, C.J., Maddox, Faulkner, Almon and Shores, JJ.,
concur.
Embry, J., concurs in the result.
Opinion handed down September 19, 1980
= felt
APPENDIX B
IN THE CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
Civil Action No. CV-79-731-G
David H. Fulton,
Plaintiff,
v.
The Advertiser Company,
et. al.,
Defendants.
Civil Action No. CV-79-729-G
William B. Wyatt,
Plaintiff,
V.
The Advertiser Company,
et al.,
Defendants.
Civil Action No. CV-79-786-G
Raiford J. Martin,
Plaintiff,
V.
David G. Bronner,
Defendant.
= A-1$ —
ORDER
This case is now submitted to the Court on the Defendant’s
motion for summary judgment with affidavits attached,' Plain-
tiff Martin’s response to motion for summary judgment, the
Plaintiff’s objections and motion to strike the affidavits filed by
Defendants, the counter-affidavits of Plaintiffs Wyatt and
Fulton, together with the argument of counsel and the
memoranda of law submitted by the parties.
I.
Plaintiff’s Motion To Strike
Deéfendant’s Affidavits And Materials
Plaintiffs have filed motions to strike the affidavits filed by
Defendants in support of their motion for summary judgment
assigning as grounds that the affidavits and other materials con-
tain hearsay, opinions, and conclusions of the affiants.
Rule 56(e) ARCP provides:
*‘Supporting and opposing affidavits shall be made on per-
sonal knowledge, shall set such facts as would be admissi-
ble in evidence, and shall show affirmatively that the af-
fiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or
served therewith.”’
The requirements of Rule 56(e) are mandatory. Wright &
Miller, Federal Practice and Procedure: Civil § 2738. A motion
to strike is appropriate; however, the Court will disregard only
' A Rule 12(b)(6) ARCP motion to dismiss is converted into a mo-
tion for summary judgment under Rule 56 when the Court considers
matters outside of the pleadings, whether or not a motion is so
denominated. Papastefan v. B & L Const. Co., 356 So.2d 158 (Ala.
1978).
— A-16 —
the inadmissible portions of a challenged affidavit and will con-
sider the rest of it. Wright & Miller, supra. In addition, af-
fidavits in support of a motion for summary judgment may set
forth only such facts as would be admissible in evidence. Hunter
v. Austin Co., 336 So.2d 203 (Ala.App. 1976) cert. denied, 336
So.2d 208 (Ala. 1976). Likewise, those filed in opposition must
adhere to the same rule of admissibility. See Shapiro v. Health
Ins. Plan of Greater N. Y., 7 N.Y.2d 56, 194 N.Y.S.2d 509, 512
(N.Y. 1959).
A.
Copies Of Pleadings
Filed In Federal Actions
The Court denies the Plaintiff’s motion to strike copies of all
documents filed in case numbers: Civil Action No. 79-265-N,
Civil Action No. 79-264-N, Civil Action No. 79-272-N, Civil
Action No. 79-305-N, and Civil Action No. 79-313-N, all being
actions filed in the United States District Court for the Middle
District of Alabama.
B.
Affidavits Of Frazier, Raiford, And Jordan
Affidavits of these individuals were not filed in support of
Defendants’ motion for summary judgment and therefore,
these grounds of Defendants’ motion to strike are not well
taken.
.
Affidavit Of James E. Foy
If the Defendants filed their affidavit of Dr. Foy for the pur-
pose of establishing the truth of the statements made by Mr.
Wright to Dr. Foy, the Plaintiffs are correct that those portions
of the affidavit should be stricken as hearsay; however, the
Court accepts the affidavit only for the limited purpose of a
=| pen
showing that certain statements were made to Dr. Foy and that
Dr. Foy transmitted this information to Defendant Bronner.
D.
Affidavit Of David G. Bronner
The Plaintiff Martin’s motion to strike the affidavit of
Bronner is granted as to the following paragraphs: 10, 14, 16,
17, 22, 23, 24, 25, 26, 27, 30, 32, 36 and the supplemental af-
fidavit of David G. Bronner.
The motion to strike of Plaintiff Martin is partially granted as
to the following: the first sentence of paragraph 11, the first
sentence of paragraph 31, and the first sentence of paragraph
37.
The motions to strike filed by Plaintiffs Fulton and Wyatt are
granted in the same respects as the motion to strike filed by
Martin; however, inasmuch as the motion filed by Plaintiffs
Fulton and Wyatt do not specifically object to portions of the
Bronner affidavit, any other matters which these Plaintiffs
specifically sought to strike is due to be, and the same is, hereby
denied.
Il.
Merits
Defendants assert several defenses in their motion. The Court
will only address the defense of Bronner’s qualified privilege in-
asmuch as the Court finds that it is determinative of this case.
In Browning v. Birmingham News, 348 So.2d 455, 458 (Ala.
1977), the Court discussed the doctrine of qualified privilege as
it exists in this jurisdiction, as follows:
** * Where a party makes a communication and such com-
munication is prompted by duty owed either to the public
or to a third party, or the communication is one in which
as lO on
the party has an interest, and it is made to another having a
corresponding interest, the communication is privileged if
made in good faith and without actual malice. * * * The
duty under which the party is privileged to make the com-
munication need not be one having the force of legal
obligation, but it is sufficient if it is social and moral in its
nature and defendant in good faith believes he is acting in
pursuance thereof, although in fact he is mistaken.’ ”’
At this juncture, it is important to note that the phrase ‘‘actual
malice’’ when used in conjunction with the privilege defense is
not to be confused with the term ‘‘Sullivan malice.’’? Actual
malice as used in conjunction with the privilege defense ‘‘may
be shown by evidence of previous ill will, hostility, threats,
rivalry, other actions, former libels or slanders, and the like.”’
Kenney v. Gurley, 208 Ala. 623 626 (Ala. 1923).
Further, our Supreme Court in Willis v. Demopolis Nursing
Home, Inc., 336 So.2d 1117 at 1120, said as follows:
**The question of whether a communication is privileged
by reason of its character or the occasion on which it was
made is a question of law for the judge. O’Barr v. Feist,
292 Ala. 440, 296 So.2d 152 (1974). Where a communica-
tion is conditionally privileged, it is free from the legal im-
putation of malice and is actionable only if there is actual
malice. Jd. The burden is on plaintiff to prove actual
malice. Interstate Electric Co. v. Daniel, supra.’’
This Court recognizes that summary judgment is often inap-
propriate in a libel action; however, the Court in Loveless v.
Graddick, 295 Ala. 142 (1975), indicated that in a case involving
qualified privilege, summary judgment may well be appropriate
2 Mobile Press Register, Inc. v. Faulkner, 13 A.B.R. 1212, 1215
(Ala. April 6, 1979).
— A-19 —
where no malice is shown. The Court also indicated in Loveless
that in granting a summary judgment motion, it must be clear
that no malice exists.
With the foregoing principles in mind, this Court need cur-
rently decide first whether the communications involved here
were conditionally privileged and, second, whether the Plain-
tiffs have shown any evidence of actual malice sufficient to
destroy the qualified privilege.
David G. Bronner was appointed to the position of Finance
Director of the State of Alabama on March 14, 1979, by Gover-
nor Fob James. By virtue of being Finance Director he became a
member of the State of Alabama Building Commission. Also by
virtue of being Finance Director, he became Chairman of the
Committee established by the Commission in 1967 to act on
behalf of the Commission with respect to matters of personnel
and financial administration of the technical staff of the
Building Commission.’
Because he had had complaints concerning mismanagement
within the Building Commission, Bronner began an investiga-
tion soon after he assumed the role of Finance Director. During
the investigation, Bronner examined under oath persons both
inside and outside of the Commission and also conducted con-
ferences with several of these people. The investigations re-
vealed incidences of what Dr. Bronner considered highly ques-
tionable employee conduct, under-qualified staff members, and
incompetent work performance. On May 29, 1979, Bronner
held a news conference at the State Capitol for the purpose of
announcing the dismissals of the four Plaintiffs in this case. The
next day, May 30, 1979, the Montgomery Advertiser published
an account of the dismissals, giving the four specific justifica-
tions that Bronner cites in his affidavit:
> Defendant Bronner was Finance Director on the dates in ques-
tion. State of Alabama Ex Rel. Meadows v. Bronner, Civil Action No.
CV-79-397-P. (Cir.Ct. Mont. Cty., September 28, 1979).
— A-20 —
1. The use of state employees on state time to do private
business.
2. The discovery of employees on the payroll who provided
little or no service to the state.
3. Allowing or initiating construction change orders resulting
in contractors receiving greater profits.
4. The use of gratuities and agents in order to secure state
business.
Plaintiff Martin,‘ in the complaint for slander, alleges that he
has been injured with respect to his reputation and standing in
the community. Plaintiffs Wyatt and Fulton allege both libel
against the newspaper as well as slander against David Bronner
as Finance Director.
After separating the objectionable from the non-
objectionable in the Bronner affidavit and in reviewing the com-
munications as alleged in the pleadings, this Court finds that the
communications were privileged.’ Having so found, the Court
further finds that the Plaintiff’s affidavits in opposition do not
show any malice on behalf of Defendant whatsoever. The fact
that the communications of the Defendant may be untrue does
* Plaintiff Adams was indicted on August 10, 1979, in a fourteen
count indictment, each and every count thereof charging Plaintiff
with perjury in connection with his testimony before a previous grand
jury. State v. Adams, Case No. CC-79-781-P. (Cir.Ct.Mont.Cty.). On
October 23, 1979, Adams pled guilty to Count XIV. On October 25,
1979, Plaintiff moved to dismiss his claim in Civil Action No. CV-79-
746-G, and the claim was dismissed with prejudice.
* Colpoys v. Gates, i18 F.2d 16 (Ct.App.D.C.Cir.) is
distinguishable from the case at Bar. The Colpoys court specifically
held that defendant, a U.S. Marshall, was not under any duty to tell
the public anything about the dismissal of his deputies or publicly to
explain the reasons for their discharge. In the instant case, the Court
finds that Bronner was acting in his general line of duty when he made
comments to the assembled press.
— A-21 —
not destroy the qualified privilege. Vigoda v. Barton, 348 Mass.
478, 204 N.E.2d 441, 26 A.L.R.3d 482 (1965). The New York
Court of Appeals has also spoken to the question of qualified
privilege: ‘‘Falsity is not sufficient for an inference of malice. It
must be . . . consistent only with a desire to injure the plaintiff
to justify . . . sending the question of malice to the jury.’’
Shapiro, supra at 513.
The doctrine of qualified privilege is necessary in order for
public officials to be able to do their jobs without fear of a libel
suit being filed against them. ‘‘They [public officials] are en-
titled to be free, and beyond that the public interest requires
that they be free, to engage in action which may have its genesis
in honest error.’’ Vigoda, supra.
As to the Advertiser’s publication of the article concerning
the Bronner press conference, the Court finds that the
newspaper’s account of the conference was fair. The condi-
tional privilege with which Bronner was cloaked here protects
the newspaper as well; the paper was merely printing the news as
it found it.
It is therefore ORDERED that the Defendants’ motions for
summary judgment are due to be, and the same are, hereby
GRANTED. It is,further ORDERED that judgment be for the
Defendants and costs are taxed against the Plaintiffs for which
let execution issue.
DONE and ORDERED this the 30th day of October, 1979.
/s/ WILLIAM R. GORDON,
Circuit Judge
— A-22 —
APPENDIX C
RELEVANT PORTIONS OF BRONNER’S AFFIDAVIT
EXCLUDING THOSE STRICKEN BELOW
‘‘WILLIAM B. WYATT”’
**6, William B. Wyatt became Deputy Director of the Com-
mission on May 1, 1973. Although the applicable statute (Sec-
tion 41-9-141, Alabama Code of 1975) mandates the appoint-
ment of ‘competent architectural and technical employees...
necessary to effectuate the requirements of this article . . .” and
although Wyatt’s duties in the second ranking position on the
Commission staff required exceptional architectural and
technical competence, Wyatt was neither an architect nor an
engineer. In addition, in view of his position and his supervision
of employees of the technical staff and other employees of the
Commission, the responsibility for misconduct, inefficiency and
mismanagement attributable to employees under his supervision
which continued uncorrected by Wyatt, must be charged to
him.'
ae
‘*‘Employees on State Payroll Who
‘*Provided Little or No Service to the State
‘**7, Footnote | has already mentioned the inspector, Howard
Wilson, who turned in few if any reports for three years. (His
annual salary was $14,846.00, which reflected a raise of
$1,014.00 on July 13, 1978.)
**8. Another employee, Mac Saxon, was on the payroll from
May 4, 1977 to January 10, 1978; he performed no more than a
week’s work during this period. (His annual salary at the latter
date was $6,266.00)
' For example, one building inspector, Howard Wilson, turned in
few if any inspection reports for a period of three years. He was not
discharged until I came to office and presented this circumstance to
the Committee.
— A-23 —
**9, Employee, John Cluck, salaried at $28,000.00 per year,
engaged in the business of selling and exchanging gold cer-
tificates from his state office on state time with such a degree of
notoriety that his activities became the subject of investigation
by the Alabama Securities Commission. As recently as May 4,
1979, Edwin Hudspeth, Staff Director of the Alabama Energy
Management Board, criticized Cluck’s performance as ex-
hibiting a ‘lack of cooperation and unprofessional attitude.’
Moreover, one Donald E. Little, who was hired on September
6, 1978 to work directly under Cluck as an energy inspector
testified during my investigations that he had never performed
any inspections. Cluck was employed in this capacity until
discharged by the Committee.’
** *
**12. As demonstrated more fully below (p. 10) Fulton’s
reports were confusing and often not properly routed. For ex-
ample, his inspection reports for Guin Elementary School on
March 5, 1979 reported that block masons were laying founda-
tion walls, whereas his report of March 26, 1979 stated that
‘block masons will start laying block March 27, 1979.’ Fulton’s
annual salary at the time of his discharge was $17,420.00.
**13. Another building inspector, Ray Martin, was permitted
to use a state automobile to engage in political activities on state
time while on the state payroll. He was not discharged until I
came to office and presented this circumstance to the Commit-
tee. His annual salary at that time was $16,094.00 (reflecting a
raise of $2,262.00 on July 13, 1978).
? Although perhaps irrelevant to Cluck’s performance, Little also
testified that he saw a case of Honeywell thermostats in Hugh Adams’
office.
—s yee
II.
Allowing or Initiating Construction Change
Orders or Otherwise Structuring Specifications
Which Resulted in Contractors and Suppliers
Receiving Greater Profits and the Channeling
of Business on an Impermissible Basis
** * &
**15. An unusual change order in connection with the con-
struction of the Diagnostic Laboratory at Auburn University
was permitted. The original architect on the project, Carl H.
Lancaster, Jr., has refused to approve the change order on the
ground that the specified saving to the State of Alabama was to
be only $25,000, when in fact it should have been approximately
$100,00 to $130,000. Lancaster’s sworn testimony was that
when the revisions were proposed, he asked three other contrac-
tors who were original bidders on the job to estimate the pro-
bable savings which would result from these changes, and the
estimates ranged from $100,000 to $130,000.
** * *
**18. Specifications for carpeting in state buildings were
designed to benefit a supplier, McAdams Carpets, Inc. As ar-
chitect Charles Humphries testified: ‘You speck (sic) everybody
out.’
**19. Replacement of office machinery furnished by one sup-
plier with identical office equipment by another supplier.
Wyatt’s explanation to the original supplier was that the
replacement became necessary because of ‘political
obligations.’?
> Alva Stuckey, Jr., President of Royal Office Equipment Com-
pany testified:
*“‘He [Wyatt] informed me that he had political obligations.
Uh, through a company called Montgomery Office Equipment
and when he was one of Governor Wallace’s uh, what would
— A-25 —
Ill.
Utilization of Gratuities or Agents
in Order to Secure State Business
**20. Architect Carl H. Lancaster, Jr., gave sworn testimony
that he had paid kickbacks to Hugh Adams, the then Director
of Technical Staff.
**21. Architect, Martin K. Johnson, gave sworn testimony
that he paid one Oscar Harper a ‘promotional fee,’ consisting of
a percentage of his total architectural fee, in order to secure
state business as a favored architect. The total amount of such
fees paid by Johnson to Harper was over $20,000.
*“*e* * *
**28. Failure to report damage to state automobile used by
Wyatt.
**29. Activities of John Cluck described in paragraph 9
above.
V.
Additional Evidence of General Mismanagement
*e# k &
you called them, cronies, and that he could not get the equip-
ment from me but that he had an obligation with the other com-
pany. I tried to impress upon him that we had done business
with the Building Commission. Miss Foster and the other people
in the Building Commission were very pleased with their service
and their backup and Miss Foster had indicated to me, when I
asked her what was going on, she implied to me with, you know
how you will when you have worked with someone as long, she
was not at all pleased with having to do business with Mont-
gomery Office Equipment Company because she had some un-
favorable trying to call them when they needed repairs of things
like this and they did not respond and did not come.”’
— A-26 —
**31. * * * The activities of John Cluck have already been
described. In order to safeguard his employment, it was
necessary to replace an energy grant with equivalent state funds
to be allocated to the Commission. Adams and Wyatt at-
tempted to amend the Governor’s general fund budget request
for this purpose, despite the Governor’s instructions that such
amendments were to be cleared through him and despite the
record of misconduct of John Cluck. (The evaluation by
Hudspeth of Cluck has been noted above in paragraph 9.)
** * *
**33. Moreover, the merit system employee who handles per-
sonnel matters for the Commission, . . . , testified:
**At the present time the working conditions are almost
unbearable as far as our administrative procedures and our
leadership. We are not certain as to exactly what to do
when and by that I mean we have had division chiefs who
have been responsible to a point of uh a certain phase of
office procedures and now it appears that those people
really don’t know what is going on and by that I mean they
were department heads and they had control of their
department at the present time there is no control of
anything, uh its very haphazard as far as I’m concerned
and who you answer to and this type of thing.’’
NACE ALLEN
**34. Adams and Wyatt themselves recommended that Allen
be discharged. At a meeting of the Committee, Adams stated
that ‘there had been general criticism of the level of inspectors
over the years and that he and Wyatt felt that these two inspec-
tors [Nace Allen and J. V. Ashhurst] were among the worst.’
Additional findings corroborate their evaluation of Allen, in-
cluding information that the absence of inspection activities by
Allen was something of a joke.
—_ <.
DAVID H. FULTON
**35. On the basis of the Adams and Wyatt evaluation of the
building inspectors, and the more precise and meaningful
criticism from such knowledgeable persons as Herbert and
Stevenson, the Committee determined that the number of
building inspectors could and should be reduced, and that those
less qualified and most recently employed should be laid off
first.
** * &
**37, * * * Herbert, chief of the division of supervision, whose
duty was to oversee inspection, testified under oath: ‘‘I don’t
know how he was hired’; and ‘I don’t know what kind of a pro-
fessional he is.’
**38. W. G. Stevenson, Chief Engineer and now Director of
Technical Staff of Commission, reported to me regarding
Fulton:
** ‘All inspection reports were supposed to be routed
through me but for at least six months prior to May 29,
1979 I’m not sure that I saw all of Fulton’s reports. As for
the reports that I saw there was nothing to indicate an
unusual ability or awareness as a building inspector, in
fact, there were some confusing reports.’ (See letters of
April 17 and May 14 attached to this affidavit as Exhibits
‘A’ and ‘B’.)
**CIRCUMSTANCES OF DISCHARGE OF PLAINTIFFS
**39. The minutes of the meeting of May 29, 1979, signed by
Dr. Teague, Representative Sasser, and me show the following:
**A discussion took place concerning the number of
building inspectors needed by the Commission. Members
of the staff had advised the Committee, through the Chair-
man, that only three or four inspectors were necessary. It
was their recommendation that Mr. Rutherford and Mr.
an AR.
McCollough were the best inspectors, and that Mr. Kirk,
III was developing suitably. Dr. Bronner made the motion
to allow Mr. Stevenson to closely monitor Mr. Kirk’s per-
formance and to retain or dismiss him as he saw fit; and on
the basis of qualifications and performance to dismiss the
inspectors, Mr. Ray Martin, Mr. David Fulton and Mr.
Howard Wilson. The motion was unanimously adopied.
‘*Further discussion of the personnel needs of the Com-
mission followed with emphasis on the necessity of acquir-
ing managers with better academic credentials and profes-
sional experience. After the qualifications and perfor-
mance of the present management team were reviewed, Dr.
Bronner moved that Mr. Hugh Adams and Mr. William B.
Wyatt be dismissed. The motion was adopted unani-
mously.”’
**40. On that same day I issued a written statement to the
news media entitled ‘Press Conference’ a copy of which is at-
tached to this affidavit as Exhibit ‘C’.
**41. In response to a question, I gave the names of the six
employees referenced in the statement — names which included
pluintiffs Wyatt and Fulton, but not Allen. The Committee had
voted to dismiss Allen on April 19, 1979.
“42. At no time did I state that any charges had been or
would be lodged against them. In fact, when asked by a reporter
what charges had been made against any specific individuals, I
answered, ‘What charges? I have made no charges about
anyone. As far as the Committee is concerned, they were
dismissed because of qualifications and performance.”’
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.