Petition — Bronner v. Fulton

Supreme Cour€, U.S.

1 FILED

80-83 NOV 24 1980

No. MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

DAvID G. BRONNER,

Petitioner,

v.

DaviD H. FULTON and WILLIAM B. Wyatt,

Respondents. |

PETITION FOR A WRIT OF CERTIORARI

To The Supreme Court of Alabama

M. ROLAND NACHMAN, Jr.

P. O. Box 668

Montgomery, AL 36101

(205) 834-2222

Special Assistant Attorney

General of Alabama

Counsel of Record for Petitioner

JERRY WEIDLER

Room 128

State Capitol Building

Montgomery, AL 36130

(205) 832-3603

Assistant Attorney General

of Alabama

Counsel for Petitioner

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

speech in the First Amendment as embodied in the Fourteenth,

a state’s highest court may reverse a summary defamation judg-

ment in favor of a defendant 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

defendant’s statements, if false, were made with knowledge of

falsity or reckless disregard of whether false or not?

2. Whether, consistently with the constitutional guarantees

described in question 1, in a defamation action 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?

3. Whether, consistently with the constitutional guarantees

and in the circumstances described in question 1, summary

judgment is essential to sefeguard freedom of speech from the

chilling effect of a spurious defamation action—supportable, if

at all, by a flicker, gleam or scintilla of evidence?

' 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, Bronner and The Advertiser Com-

pany, Appellees there.

lii

TABLE OF CONTENTS

Page

Questions Presented for Review..............0c0e0e i

ee ee aa a a ea neeavsdenees |

ne l

Constitutional Provisions Inv6ked .................. ]

ES 2

Reasons for Granting the Writ ................00000 6

I. The Application of Alabama’s Scintilla Rule

in This Case Violates Freedom of Speech .... 6

It. A Judicial Failure to Determine Whether a

Libel Plaintiff is a Public Official or Public

Figure Under a Uniform Constitutional Test

Violates Freedom of Speech ............... 12

III. Freedom of Speech and Press Mandate Sum-

EE 15

ee te wccvevecsevevees 17

APPENDIX A (Opinion of Supreme Court of Ala-

a, nay bo scenes cee scedebebeces A-l

APPENDIX B (Opinion and Judgment of Trial Court). A-14

APPENDIX C (Exerpts from Affidavit of David G.

Tee acu cis debe bs ov eaneeses A-22

PREVIOUS PAGE WAS BLANK j

iv

TABLE OF AUTHORITIES

Cases

American Benefit Life Ins. Co. v. McIntyre, (Ala.) 375

Peo lbes bas and o Vaden ces Cobos

ee Fs es ee x os vo bia he deine bwns or:

Otay F. TRE; Ser Woes OE ove hsb vd ekcwnsav cedar

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

8 Fe OES Poor ay Ce aby bere epee

Brady v. Southern Ry. Co., 320 U.S. 476.............

Brown v. Kitterman, 443 S.W.2d 146 ................

Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972)

Cont. Game, SOP UB. F588 ovis cassis cccaceas

Chase v. Daily Record, Inc., 83 Wash.2d 37, 515 P.2d

Cosery ¥. Piel, 270 S0.B6 GIG «ois ios cd cadevescaces

Coursey v. Greater Niles Tp. Publishing Corp., 40 Ill.2d

Bi A RT 5 88 kcal aes wasn ces

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.................

Guitar v. Westinghouse Electric Corp., 396 F. Supp.

Be GR FIeT Us CPEs Chas ind oe svrvvat¥eonsedne

Hanson v. Couch, (Ala.) 360 So.2d 942 .............. 8

L. &N. R. Co. v. Grizzard, 238 Ala. 49, 189 So. 203 ... 9

L. & N. R. Co. v. Steel, 257 Ala. 474, 59 So.2d 664..... 9

L. & N. R. Co. v. Green, 255 Ala. 642, 53 So.2d 358 ... 9

MacNeil v. Columbia Broadcasting System, Inc., 66

NS a ies ab 504 Fr BCA DOF ohn Na Soke ce 14

Meerpol v. Nizer, 381 F.Supp. 29, (S.D.N.Y. 1974) .... 15

Miller v. News Syndicate Co., 445 F.2d 356 (2d Cir.

arcs hak Vuh eka cKO WOE RTA eek ade 15

Mobile Press Register v. Faulkner, (Ala.) 372 So.2d

Re NSS i Cah Cave tanec und ee nanvders 3

Monitor Patriot Co. v. Roy, 401 U.S. 265 ............ 11

New York Times v. Sullivan, 376 U.S. 254 (1964) .. .3,6,7,9,13,

14,15

Ocala Star-Banner Co. v. Damron, 401 U.S. 295 ...... 1]

Perry v. Columbia Broadcasting System, Inc., 499 F.2d

797 (7th Cir.) cert. denied, 419 U.S. 883.......... 15

Rosenblatt v. Baer, 383 U.S. 75.............cccecee 3,6,13,14

Ross v. News Journal Co., 228 A.2d 531 ............. 14

Ryan v. Dionne, 28 Conn. Sup. 35, 248 A.2d 583 ...... 14

St. Amant v. Thompson, 390 U.S. 727 ............... 7,14

Standke v. B. E. Darby & Sons, Inc., 193 N.W.2d 139.. 14

Silbowitz v. Lepper, 32 App. Div2d 520, 299 N.Y.S.2d

PU RNWAS ah SedNGe eh bbe teks'e 54de sob ks eke ve 14

vi

Thompson v. Evening Star Newspaper Co., 129 U.S.

App. D.C. 299, 394 F.2d 774 cert. denied, 393 U.S.

Se Rca dian Naa ben weds aaa eae ees eee 15

Time, Inc. v. McLaney, 406 F.2d 565 (Sth Cir.), cert.

IE hobs Sao ao 58s eee ck eenen 15

es is We i ae A PE as ko 50-0 00 0d esceenan 3,10,14

Tunnell v. Edwardsville Intelligence, Inc., 99 Ill. App.

Oe ey IE 4940444 ne as deeesubeaiees 14

Vintage Enterprises, Inc. v. Cash, (Ala.) 348 So.2d 476 . 8

Washington Post Co. v. Keogh, 365 F.2d 965 (1966),

| Pe eer 15

Statutes

RP SR Oe OE bin onc osc icacccccuacscesacees 8

PS TO6, FB. CORR TSTS onc cc cece cccctcncsccsacss 8

Miscellaneous

Restatement of the Law, Torts 2nd, p. 152............ 9

Restatement of the Law, Torts 2nd, 580A(f), p. 220.... 10

Restatement of the Law, Torts 2nd, 591, p. 255........ 11

IX Wigmore on Evidence, §2492 ..............00000- 8

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

Davib G. BRONNER,

Petitioner,

v.

DAviID 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

Montgomery County, Alabama of October 30, 1979, appears as

Appendix 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).

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.

*_* * &

pened

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, David G. Bronner, then Finance Director of

the State of Alabama, and a co-defendant, The Advertiser

Company, a newspaper publisher (‘‘Advertiser’’). ' Respondent

Wyatt, recently discharged deputy director of the State Building

Commission of Alabama (‘‘Commission’’), had brought a

defamation action against Bronner seeking compensatory

damages of $100,000 and punitive damages of $1,000,000; and

respondent Fulton, a recently 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 defamation, as will more fully appear, arose out of

Statements made by Bronner at a news conference held on May

29, 1979. Although the summary judgment was based upon

Bronner’s defense of qualified executive privilege, among the

‘A separate petition for certiorari is being filed contemporaneously

by Advertiser.

*Respondent Wyatt sought compensatory damages against Adver-

tiser of $100,000 and punitive damages of $1,500,000; and respondent

Fulton sought compensatory damages of $200,000 and punitive

damages of $2,000,000 against it. These claims arose out of Adver-

tiser’s press coverage of this news conference.

— Po

other ‘‘numerous’’ defenses asserted by Bronner in his pretrial

motions was that a summary judgment was essential to avoid

the abridgment of his freedom of speech guaranteed by the First

and Fourteenth Amendments. Moreover, in the court below,

Bronner again asserted in his brief that the summary judgment

entered by the trial court was essential to avoid the abridgment

of that freedom, and that the judgment in his favor was man-

dated by New York Times v. Sullivan, 376 U.S. 254, and its pro-

geny.* The Supreme Court of Alabama rejected this constitu-

tional assertion; reversed the summary judgment for Bronner;

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.

*Bronner’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 So.2d 1286, 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

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, Rosenblatt 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.”

a

The nature of the alleged defamation and of the ‘‘genuine

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 committee

charged with supervising the personnel and financial affairs 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

performance of the Commission and its technical staff and per-

sonnel. Bronner, jointly with other public investigators, con-

ducted an extensive investigation into the activitivs and affairs

of the Commission, its director of technical staff, its deputy

director (respondent Wyatt) and its employees. The investiga-

tion including oral examinations under oath.

Bronner’s extensive, and uncontruverted 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. Subsequently,

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.

‘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.

—

As recited in the opinion of the court below, on May 29,

1979, Bronner conducted a news conference. His written

statements and the portion of Bronner’s uncontradicted af-

fidavit regarding his oral statements’ are quoted in the opinion

below. (Ms. 3-4) Although the content of Bronner’s written and

oral statements is undisputed; and although, without dispute

Bronner stated at this news conference that he had made no

charges, let alone criminal charges, ‘‘abouteny one. . . they

were dismissed because of qualifications and performance’’, the

Supreme Court of Alabama nevertheless found a genuine issue

for trial of these multimillion dollar defamation actions on the

issue of whether the words Bronner used ‘‘imputed criminal! ac-

tivity and guilt of all four categroies of misconduct to both

Wyatt and Fulton.’’ (Ms. 16)

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 received

any kickbacks or illegal payments; that they had never been sub-

jected 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.

* Appendix C hereto, p. 7.

—

REASONS FOR GRANTING THE WRIT

More than 16 years ago, because Alabama’s libel laws abridged

freedom of speech and of the press, this Court cast aside this im-

permissible infringement 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 im was false or not.

Because Alabama has applied its so-called ‘‘scintilla rule’ to

defamation actions brought by public officials or public figures

against newspapers in these circumstances; 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 standard;* and because, in

so doing, the court below has decided these critical federal ques-

tions in a way which conflicts with New York Times v. Sullivan

and all of its progeny to date, it is imperative that this Court ad-

dress and overturn the renewed rejection by the Supreme Court

of Alabama of the constitutional guaranties enshrined in these

decisions of this Court as essential to freedom of the press.

I.

The Application Of Alabama’s Scintilla Rule

In This Case Violates Freedom Of Speech.

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

* Rosentiatt v. Baer, 383 U.S. 75, 84 et seq.

a

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 Bronner presumably on the theory that his statements could

be construed by a jury to contain criminal charges against

respondents, despite his undisputed affidavit that he expressly

made plain at the very time and place of the statements that he

was not making any charges at all, let alone criminal ones,

against them. The opinion of the court below never explains

how respondents can conceivably meet the burden proof by

convincing clarity that Bronner in fact entertained serious

doubts as to the truth of his statements. Such an absurdity can

perhaps be explained—if at all—by the application of

Alabama’s “‘scintilla rule’’ to this defamation case. (Opinion

Below, Ms. 12-14) As the court below recently explained 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)

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

— a

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 new 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. IX

Wigmore on Evidence, § 2492.

'° 45 U.S.C.A. §51 et seq.

— yn

[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 scintillanrule 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.

— a

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 a

feasible the restatement o{ 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

omission of the word ‘‘alleged’’ from a magazine stoiy based

'? Restatement of Torts 2nd, 580A(f), p. 220.

—_

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. . .”’

The decision below held, indeed, that Bronner’s official

duties included that of ‘‘informing the public of the results of

statutorily prescribed investigations of state departments and

agencies.’’ (Ms. 10) Thus its ultimate irony is that had Bronner

been an official of the United States or of most states, the

remarks he made at his news conference would have been ab-

solutely privileged under the principles of Barr v. Mateo, 360

U.S. 564, and the national trend of state decisions. '*

'* 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.

'* Restatement of the Law, Torts 2nd, §591, p. 255:

“ta. Complete freedom in performing the duties of the impor-

tant executive offices of the Nation and State zequires the ab-

—i2—

II.

A Judicial Failure To Determine Whether A Libel

Plaintiff Is A Public Official Or Public

Figure Under A Uniform Constitutional Test

Violates Freedom Of Speech.

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

solute privilege to publish defamatory matter of others when the

publications are incidental to the performance of the duties of

the office. The public welfare is so far dependent upon a

reasonable latitude of discretion in the exercise of functions of

high executive offices that their incumbents may not be hindered

by the possibility of a civil action for defamation in connection

therewith.

**b. In Barr v. Matteo (1959) 360 U.S. 564, it was held that the

rule of absolute privilege stated in Clause (a) extends to all of-

ficers of the United States, no matter how inferior their position

or duties, so long as the publication is made in the performance

of the duties, or, as the Court put it, within the ‘outer perimeter’

of their duties. Accordingly, the rule stated in Clause (a) extends

to all federal officers.

*‘c, All of the state courts that have considered the question

have agreed that the absolute privilege stated in Clause (b) pro-

tects the superior officers of the state governments, including at

least the governor, the attorney-general or the heads of state

departments whose rank is the equivalent of cabinet rank in the

Federal Government. A good number of the States have gone

jurther, and have extended the absolute privilege to state of-

ficers of various ranks below that of cabinet level. The greater

number of the state courts have not made the extension to the

point of the federal rule and some have expressly confined the

absolute privilege to superior officers of the States. This leaves

the inferior state officers in these States with only a conditional

privilege, as stated in §598A.

“‘d. The privilege stated in this Section is absolute. Hence no

action for defamation can be maintained against any one of the

designated executive officers irrespective of his purpose in mak-

ing the publication.’’

—:

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 million in punitive damages from Bronner. Gertz v.

Welch, 418 U.S. 323, 350:

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:

[Considerations 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.

ie ee

Indeed, this Court has held that the manager of a ski lodge,'®

the clerk of a state court,'’ a police commissioner,'* a deputy

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.?!

'® Rosenblatt v. Baer, 383 U.S. 75.

’ Beckley Newspapers v. Hanks, 389 U.S. 81.

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

'? St. Amant v. Thompson, 390 U.S. 727.

20 Time, Inc. v. Pape, 401 U.S. 279, 284.

7! 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 I11.2d 257, 239 N.E.2d 837

(city patrolman); Tunnell 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).

III.

Freedom Of Speech and Press Mandate 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 speech and press from the chilling effect of spurious

libel suits—those supportable, if at all, by flickers, gleams or

scintillas 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

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., :29 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).

— vo

payroll, has not appealed from the summary dismissal of his

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 judgments in favor of state cabinet officers who

publish the results of such investigations into maladministration

are constitutionally required in order to relieve against the

financial burdens of expensive court proceedings, which, if un-

warranted, would offend the constitution by ‘‘chilling’’ the ex-

ercise of free speech and press, and thus foreclosing this vital

avenue of communication 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

Special Assistant Attorney

General of Alabama

Counsel of Record

for Petitioner

JERRY WEIDLER

Room 128

State Capitol Building

Montgomery, Alabama 36130

Assistant Attorney General

of Alabama

Counsel for Petitioner

APPENDIX

— < oe

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.

Deréfidant 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-

ee, yo

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.

——

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 Bui/ding 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.’’

=

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.

a pel

—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 to 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 could 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.

a yee

... 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)

——_ s.

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. Ciiy of New York Ins. Co., 210 Ala.

369, 98 So. 290 (1923).

The question o/ 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.

a = yom

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, 84S.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. Our

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-

—)

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. 24 (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 v. 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 v. 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 to 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

accompanying 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.

0

Opinion handed down September 19, 198

tm

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-15 —

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

Defendant’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

=" Papastefan v. B & L Const. Co., 356 So.2d 158 (Ala.

— 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.

c.

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

—_

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

\.

— A-18 —

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 cr 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. Jnterstate 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

? 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, Bromner

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, 118 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.'

“il.

‘‘Employees on State Payroll Who

‘*Provided Little or No Service to the State

‘*7, Footnote 1 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.

an lh w

‘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

—" that he saw a case of Honeywell thermostats in Hugh Adams’

office.

— A-24 —

Il.

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

s**t *

‘*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

—

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.

** * &

**28. Failure to report damage to state automobile used by

Wyatt.

**29. Activities of John Cluck described in paragraph 9

above.

¥.

Additional Evidence of General Mismanagement

* ee &

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.

— Atl =

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.

—

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 adopted.

‘*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

plaintiffs 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.”’