Petition — Valley News v. McCusker

iL 122 JUL 20 1981

ALEXANDER L STEVAS,

VLAN |

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

VALLEY News

Petitioner,

Vv

JAMES F. MCCUSKER

Respondent.

ON APPEAL FROM THE NEW HAMPSHIRE

SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

ERnNesT L. BELL, III, Esa.

Counsel of Record

BELL, FALK & Norton, P. A.

Drawer F

Keene, New Hampshire 03431

(603) 352-5950

EDWARD Drew CHENEY, Esa.

On the Petition

i

QUEST!ONS PRESENTED

1. Was it error for the New Hampshire Supreme Court to

conclude that respondent was not a public official as a matter of

law when there were no facts in dispute as to respondent's

Official positions, duties and responsibilities?

2. Was petitioner deprived of its rights under the First and

Fourteenth Amendments when the New Hampshire Supreme

Court. without having had the issue presented, argued, or

briefed by either party, ruled that a libel plaintiff, who had been

held by the court sua sponte to be neither a public official nor a

public figure. may recover upon a showing that libel defendant

was negligent in publishing a defamatory falsehood?

As per Supreme Court Rule 28.1. please be advised that as

of the date of the libel, petitioner. Valley Publishing Corp..

known as Valley News, did not have an affiliate or parent

company. As of the date of the filing of this brief, Valley

Printing Company has become a wholly owned subsidiary of

Newspapers of New Hampshire, Inc. New Hampshire. Inc.

publishes the Holyoke’ Transcript-Telegram, Holyoke.

Massachusetts and the Concord Monitor, Concord, New

Hampshire, both daily newspapers. It also owns a 50% interest

in Recorder Publishing Co.. Inc., the publisher of the Green-

field Recorder, Greenfield. Massachusetts, a daily newspaper.

In 2ddition, Newspapers of New Hampshire, Inc. owns 3% of

the common stock of Continental Cable Vision, Inc., Boston,

Massachusetts.

INDEX

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The Respondent, a Deputy Sheriff at the Time of

—-gapieaga was a Public Official as a Matter of

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The New Hampshire Supreme Court Erred in, sua

sponte, Holding that a Negligence Standard was

Applicable in a Non Public Official/Public Fig-

ELEEATS RR A

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TABLE OF AUTHORITIES

Pages

CASES:

Ammerman v. Hubbard Broadcasting, Inc., 91 N.M.

a Mg ST: OEE: | 8

Armstrong v. Manzo 380 U.S. 545 (1965) ....ccccecereerees 13

Board of Regents v. Roth, 408 U.S. 564 (1972) .......0+ 13

Boddie v. Connectucut, 401 U.S. 371 (1971) wc. 13

Cahill v. Hawaiian Paradise Park Corp., 56 Hawaii !

ee, Se ee Be UTED tect seshnsintnticzoneeniiamncnnsaes y

Chapadeau v. Utica Observer-Dispatch, Inc., 38

N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569

ODDIE B iccccccicucescinbietinseeisheaatinedinnibunicanscaualmaenginaiin 9

Colombo v. Times-Argus Ass'n., 380 A.2d 80 (Vt.

IPT F Duis: ninctendasbincésuensanpbcoaacs adasaiaimmncimnscammalonsimasiaiiasis 8

Demers v. Bisbee, 106 N.H. 354, 211 A.2d 416

UII I cacainaceantaetdhadinsesanibadssisedepiensensiaibdemmmiidadiads 8

Ethridge v. North Mississippi Communications, Inc.,

460 F. Supp. 347 (N.D. Miss. 1978) ......cccesseseeeeees 8

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ....... 9,10,11,

12

Gray v. Udevitz, 5 Media L. Rptr. 1412 (D. Wyo.

SWPP) cccaceatinvensenidesnedlesceibiasteontuamnatmunisiatsariaasiehinsanes 8

Greene v. McElroy, 360 U.S. 474 (1959) .....cccccceeeesees 13

Hutchinson v. Proxmire, 443 U.S. 111 (1979) 0... 7

Ingraham v. Wright, 430 U.S. 651 (1977) w.ccccccccseeeees 12

Kidder v. Anderson, 354 So.2d 1306 (La. 1978).......... 8

Martin v. Griffin Television, Inc., 549 P.2d 85 (Okla.

SPF FP Uh acatsdccasits tccis ais cistnaseastsiinetascanodeenbed nsiceashmeaaatiomaibeamiaasenes 9

McCarney v. Des Moines Register & Tribune Co., 239

N.W.2d 152 (lowa 1976).......... icncabelisnenticensuimesapeses 8

Meachum v. Fano, 427 U.S. 215, reh. den. 429 U.S.

UIE CPOE Raicclinescicetuisasbinchesnrissenssmasentndbiceesineiaactasnssen 12

Pages

Meiners v. Moriarity, 563 F.2d 343 (7th Cir. 1977)..... 8

Mullane v. Central Hanover Bank & Trust Co., 339

OR Es 8 | GARBER Sse ASr PEA AO tat aR re 13

New York Times Co. v. Sullivan, 376 U.S. 254(1964) = 7,10,12

Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309,

Se PG OTT F inicsitistestestsncdetercccsianneenianteninie 9

Peisner v. Detroit Free Press, 82 Mich. App. 153, 266

Dame ORT © REP TTED scssucscchbndiianbansebecnoseesenednenchaennancees 9

Robinson v. Hanrahan, 409 U.S. 38 (1972) ...cccccceceees 13

Rosenblatt v. Baer, 383 U.S. 75 (1966) .....ccccccccccceeeces 6,7,8

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). 10

St. Amant v. Thompson, 309 U.S. 727 (1968) .........00.. 8

C.F, He DEG, BOP its BIO CAPO } cecesccsscscesesviessesanebees 13

Walker v. Colorado Springs Sun, Inc., 188 Colo. 86,

538 P.2d 450, cert. den. 423 U.S. 1025 (1975)........ 9

STATUTE

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UNITED STATES CONSTITUTION

United States Constitution, Amendment I............ 2,14

nS 2,12,13

No.

IN THE

Supreme Court of the United States

OctToser TERM, 1980

VALLEY NEws,

Petitioner,

Vv

JAMES F. McCCuSKER,

Respondent.

ON APPEAL FROM THE NEW HAMPSHIRE

SUPREME COURT

Petition For Writ of Certiorari

OPINIONS BELOW

The opinion of the New Hampshire Supreme Court is

reported at l2! NH =, 428 A2d 493 (1981). The order by the

New Hampshire Supreme Court denying defendant's motion

for a rehearing is not reported.

JURISDICTION

The judgment of the New Hampshire Supreme Court was

made and entered on April 3, 1981. Petitioner's Motion to Set

2

Aside Finding and/or for a Rehearing was denied by the New

Hampshire Supreme Court on April 21, 1981. The jurisdiction

of this Court is invoked under 28 USC §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides, in part:

“Congress shall make no law... abridging the free-

dom of speech, or of the press... ”

The Fourteenth Amendment to the United States Con-

stitution provides, in part:

““No State shall. ... deprive any person of life, liberty,

or property, without due process of law... ”

STATEMENT OF THE CASE

This libel suit arises from an article published on October

8, 1976, by petitioner in the Valley News, a daily newspaper.

The article reported that certain unnamed legislators had

alleged that respondent, who was 78 years of age and a brother

of the sheriff of Sullivan County, was “being paid $9,000 a year

as a part-time deputy sheriff, plus an undetermined amount of

money in per diem fees, despite the fact that he is barely

ambulatory.”'

Alleging that these statements were untrue and libelous,

respondent brought suit in the Sullivan County Superior Court.

Petitioner moved for summary judgment on the grounds that

respondent was a public official, that the article related to his

official conduct, that the publication was actionable only upon a

showing of “actual malice,” and that there were no facts that

would establish such malice. Both petitioner and respondent

filed supporting affidavits. The trial court found that there were

' The undisputed facts before the New Hampshire Supreme Court also

show that during a substantial portion of respondent's term as sheriff of

Sullivan County, his brother served as deputy sheriff. When respondent

reached the age of 70, the mandatory retirement age for sheriffs in New

Hampshire, he retired and his brother immediately became sheriff and

appointed respondent as deputy sheriff.

3

genuine issues of fact as to whether respondent was a public

official and therefore denied summary judgment.

Petitioner appealed to the New Hampshire Supreme

Court. Under the provisions of NHRSA 490:9, the following

questions of law were transferred by the Superior Court:

A. Was the Superior Court in error in refusing to grant

Valley News’ Motions for Summary Judgment either in whole

or in part?

B. Is plaintiff a public official?

C. Is plaintiff a public figure?

D. Does plaintiff have an action at law based upon the

pleadings?

E. Was plaintiffs affidavit sufficient to support the Court’s

denial of defendant’s motion?

Petitioner briefed and argued the following contentions:

I. Plaintiff, as deputy sheriff and superior court bailiff,

was at the time of the alleged libel a “public official” and

as such defendant is entitled to a summary judgment on its

behalf on this issue.

Il. Plaintiff, as a deputy sheriff, superior court bailiff

and as one who for at least the past forty years has thrust

himself into the public life of Sullivan County, was at the

time of the alleged libel a “public figure” and as such

defendant is entitled to a summary judgment on its behalf

on this issue.

III. Summary judgment is the proper remedy in this

case and the Superior Court was in error when it ruled that

there were genuine issues of material fact insofar as the

issue of public official was concerned.

Respondent briefed and argued the following contentions:

I. The New Hampshire Constitution entitles the

plaintiff in a defamation action to a jury trial on the issue

of whether he is a public official. The Constitution of the

United States does not require otherwise.

4

II. Even if the question of whether the plaintiff is a

public official or a public figure were to be decided as a

matter of law or on a motion for summary judgment, the

court should find that this plaintiff was neither a public

official nor a public figure at the time he was defamed.

A. As a deputy sheriff and bailiff at the time of

the publication, the plaintiff was not a “public official”

within the meaning of New York Times.

B. The plaintiff was not a public figure within the

meaning of Gertz v. Welch.

III. Even if the piaintiff were found to be a public

official or a public figure, there would be a genuine issue of

fact regarding the defendant’s malice. The court cannot

try issues of fact on a motion for summary judgment.

In a per curiam opinion, the New Hampshire Supreme

Court held that respondent, as a deputy sheriff, was not a public

official or a public figure as a matter of law and was entitled to

a jury trial on the issues of whether he was a public official or a

public figure and whether petitioner acted with “actual mal-

ice.” The Court also stated as follows:

If the plaintiff was neither a public official nor a public

figure, then he need not prove knowing falsehood or

recklessness. Gertz v. Robert Welch, Inc., 418 U.S. at 343-

48. Instead, he may recover compensatory damages upon

a showing that the defendant was negligent in publishing a

defamatory falsehood. See id., at 349-50.

121 NH_ , 428 A2d at 494. This was the first time that the

New Hampshire Supreme Court had adopted this rule.

On April 8, 1981, Petitioner filed in the New Hampshire

Supreme Court a Motion to Set Aside Finding on Issue Not

Briefed and/or for a Rehearing. In this motion, Petitioner

argued that the finding quoted above was on an issue which

was not among the questions transferred and which was neither

argued nor briefed by either party. Petitioner also pointed out

that the resolution of this issue is of crucial importance not only

to the parties involved in this particular litigation but also to all

5

Parties actually or potentially involved in defamation litigation

in New Hampshire. Defendant argued that it was inequitable

and unfair to adopt a new rule for the standard of liability in

defamation cases brought by private plaintiffs without the

matter being fully presented, briefed and argued.

Petitioner requested that the New Hampshire Supreme

Court reconsider its decision in toto and stressed the fact that

petitioner and other interested parties be allowed to brief and

argue the issue of what standard of liability should apply in

cases brought by plaintiffs who are neither public figures nor

public officials. In addition, the Monitor Publishing Co., Inc.,

which publishes a daily newspaper in Concord, New Hamp-

shire, filed a motion requesting essentially the same relief as

defendant had requested. Nonetheless, on April 21, 1981,

defendant’s motion for rehearing was denied.

STAGE OF PROCEEDINGS AT WHICH

FEDERAL QUESTIONS WERE RAISED

The first federal question raised in this appeal is whether it

was error for the New Hampshire Supreme Court to conclude

that respondent, a deputy sheriff, was not a public official as a

matter of law when there were no facts in dispute as to

respondent's official position, duties and responsibilities.

The second federal question raised in this appeal is what

standard of liability should apply in a libel suit brought by a

plaintiff who is neither a public official nor a public figure. This

question was first raised and decided sua sponte by the New

Hampshire Supreme Court in the written opinion it released on

April 3, 1981. Neither petitioner nor respondent ever received

an opportunity to brief or argue this question, either before or

after the New Hampshire Supreme Court made its decision.

The third federal question raised in this appeal is whether

the New Hampshire Supreme Court deprived defendant of due

process when, without giving defendant an opportunity to brief

or argue the issue, it ruled that a private plaintiff in a libel

6

action may recover compensatory damages merely upon show-

ing that a defendant was negligent in publishing a defamatory

falsehood. This question was first raised on April 8, 1981, when

defendant filed a Motion to Set Aside Finding on Issue Not

Briefed and/or for a Rehearing. In this motion Petitioner

argued that it was inequitable and unfair for the New Hamp-

shire Supreme Court to adopt this new rule without giving

Petitioner the opportunity to brief or argue the issue. On Apnl

21, 1981, the New Hampshire Supreme Court denied this

motion.

ARGUMENT

THE RESPONDENT, A DEPUTY SHERIFF AT THE

TIME OF PUBLICATION, WAS A PUBLIC OFFICIAL AS

A MATTER OF LAW.

Throughout the pendency of the instant case, there has

never been any factual dispute as to the official position., duties

and responsibilities of respondent. Although there existed no

genuine issues of fact as to respondent’s service in public office

since 1943, the trial court ruled that partial summary judgment

on the “public official” issue was inappropriate, and this ruling

was affirmed by the New Hampshire Supreme Court. This was

clear error, especially in light of this Court’s statement that the

decision as to whether the plaintiff in a defamation action is a

public official is “for the trial judge in the first instance.”

Rosenblatt v. Baer, 383 U.S. 75, 88 (1966).

The New Hampshire Supreme Court expressly recognized

respondent’s background as a law officer and set forth the

history of his service in public office:

The plaintiff in this case was the sheriff of Sullivan

County, an elective office, from 1943 to 1966. At the time

of the publication in question, he was a deputy sheriff

under an appointment of his brother, then the sheriff. In

his capacity as deputy sheriff, the plaintiffs duties consisted

of serving process, interviewing complainants, doing in-

vestigative work, and acting as bailiff for the superior

court. The plaintiff has served as president of the New

Hampshire Sheriff's Association. In 1955, he organized the

Sullivan County Peace Officers’ Association. In the late

1930’s, he was the president of the Permanent Fireman's

7

Association, and in 1939 he authored a legislative bill

providing for firemen’s retirement. He has been active

over the years in political campaigns and has spoken to

service and women’s clubs.

App. at 7a.

The New Hampshire Supreme Court held that the trial

court was correct in holding that genuine issues of fact existed

which precluded summary judgment, yet the petitioner bas

never contested the accuracy of the facts recited by the New

Hampshire Supreme Court. While this Court has expressed

some reservations as to the propriety of summary judgment on

the merits in libel suits, Hutchinson v. Proxmire, 443 U.S. 111,

120 n.9 (1979), it has never suggested that particular legal

issues should not be decided by the court prior to trial. Where

there are no facts in dispute, the trial court must “in the first

instance” make the determination as to whether a libel plaintiff

is a public official. Cf. Rosenblatt v. Baer, supra.

In the instant case, had the trial court or New Hampshire

Supreme Court ruled on this issue, the decision would have to

have been that respondent was a public official. The uncon-

tested facts revealed that respondent had served as sheriff from

1943 to 1966. In 1966, when the respondent was forced to

retire (due to state constitutional provisions governing retire-

ment age for sheriffs), his brother was elected sheriff and the

respondent was appointed deputy sheriff and was serving in

that capacity at the time of the publication of which he

complained. That publication raised doubts as to the respon-

dent’s ability to serve as deputy sheriff and was directly related

to his official conduct in office.

In New York Times v. Sullivan, 376 U.S. 254 (1964), this

Court established the constitutional rule that public official libel

plaintiffs had to prove “actual malice” in order to recover. In

footnote 23, the Court noted that it was not necessary, in that

case, to fully delineate “how far down into the lower ranks of

government employees the ‘public official’ designation would

extend,” but it did conclude that the plaintiff, a City Commis-

sioner in charge of the police department, clearly was a public

official. In St. Amant v. Thompson, 390 U.S. 727 (1968), the

plaintiff was a deputy sheriff (just as respondent herein).

Without hesitation, this Court accepted the lower court’s

determination that a deputy sheriff had “substantial responsi-

bility for or control over the conduct of governmental affairs”

under the test established in Rosenblatt v. Baer, supra, and,

therefore, was a public official. 390 U.S. at 730, n.2.

Numerous other cases throughout the country have con-

cluded, as a matter of law, that law enforcement officers are

public officials: Meiners v. Moriarity, 563 F.2d 343 (7th Cir.

1977) (Agent From Drug Abuse Law Enforcement Agency of

the U.S. Department of Justice); Gray v. Udevitz, 5 Media L.

Rptr. 1412 (D. Wyo. 1979) ( Ex-policeman Regarding Conduct

as Policeman); Ethridge v. North Mississippi Communications,

Inc., 460 F. Supp. 347 (N.D. Miss. 1978) ( Undercover Narco-

tics Agent); Kidder v. Anderson, 354 So. 2d 1306 (La. 1978)

(Police Chief); Colombo v. Times-Argus Ass'n, 380 A. 2d 80

(Vt. 1977) (Police Patrolman); Ammerman v. Hubbard Broad-

casting, Inc., 91 N.M. 250, 572 P. 2d 1258 (1977) (Deputy

Sheriff); McCarney v. Des Moines Register & Tribune Co., 239

N.W. 2d 152 (lowa 1976) (Police Captain). And the New

Hampshire courts themselves, in different contexts, have recog-

nized that deputy sheriffs are public officials:

We think that it must be true that sheriffs and their

deputies, like other public officers, are under a general duty

to exercise reasonable skill and diligence in performance of

their official duties ... The official duties of sheriffs and

their deputies are numerous and diversified .. .

Demers v. Bisbee, 106 NH 354 at 356, 211 A. 2d 416 (1965)

(emphasis added ).

In light of the above cases and the undisputed facts in the

instant case, the trial court, when presented with a motion for

summary judgment on the public official issue, had an affirma-

tive duty to render a ruling that the respondent was a public

official, at least in regard to the allegedly defamatory article

which dealt only with his fitness for office and his official

conduct.

9

THE NEW HAMPSHIRE SUPREME COURT ERRED IN

SUA SPONTE HOLDING THAT A NEGLIGENCE STAN-

DARD WAS APPLICABLE IN A NON PUBLIC OFFICIAL/

PUBLIC FIGURE LIBEL CASE

The decision by the New Hampshire Supreme Court

should be reviewed because it erroneously holds that a private

plaintiff in a libel action may recover damages merely upon

showing that the defendant was negligent in publishing a

defamatory falsehood. This conclusion was reached without

analysis of any underlying policy considerations and with

reference to only one authority, the decision by this Court in

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). In Gertz, this

Court held by a five to four majority that “so long as they do

not impose liability without fault, the States may define for

themselves the appropriate standard of liability for a publisher

or broadcaster of defamatory falsehood injurious to a private

individual.” /d., 418 U.S. at 347.2

2 Several states have adopted a negligence standard in libel actions

eyo ry individuals. See, “f. eagler v. Phoenix Newspapers, Inc..

114 Ariz. 309, 560 P2d 1216 (1977); Cahill v, Hawaiian Paradise Park Corp.,

56 Hawaii 522, 543 P2d 1356 (1975); Martin v. Griffin Television, Inc., 549

P2d 85 (Okla, 1976), Several others have chosen to apply the “actual

malice” standard. See, ef. Peisner v. Detroit Free Press, 82 Mich. App. 153.

266 NW2d 693 (1978); Walker v. Colorado Springs Sun, Inc., 188 Colo. 86,

538 P2d 450. cert. denied 423 U.S. 1025 (1975). In Walker, the Colorado

Supreme Court said that it adopted the “actual malice” standard:

simply from [its] conclusion that a simple negligence rule would cause

such a chilling effect upon the news media that it would print insufficient

facts in order to protect itself against libel actions and that tnis

insufficiency would be more harmful to the public interest than the

possibility of lack of adequate compensation to a defamation injured

private individual.

188 Colo. at 99, 538 P2d at 458.

New York has adopted a third standard. In Chapadeau v. Utica

Observer-Dispatch, Inc,, 38 NY2d 196, 199, 379 NYS2d 61, 341 NE2d 569

(1975), the New York Court of Appeals held that “where the content of the

article is arguably within the sphere of legitimate public concern, which is

reasonably related to matters warranting public exposition, the party defamed

may recover" upon establishing “by a preponderance of the evidence, that the

publisher acted in a grossly irresponsible manner without due consideration

for the standards of information gathering and dissemination ofdinanly

followed by responsible parties.”

10

For several reasons, this Court should now overturn this

holding and instead require that civil libel plaintiffs should be

required to prove actual malice, see New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), in actions concerning media

reports of the involvement of private individuals in events of

public or general interest. See Rosenbloom v. Metromedia,

Inc., 403 U.S. 29 (1971); Gertz, supra, 418 U.S. at 361

(Brennan, J., dissenting). As Mr. Justice Brennan stated in his

dissenting opinion in Gertz, 418 U.S. at 366-67:

Adoption, by many States, of a reasonable-care stan-

dard in cases where private individuals are involved in

matters of public interest—the probable result of today’s

decision—will ... lead to self-censorship since publishers

will be required carefully to weigh a myriad of uncertain

factors before publication. The reasonable-care standard

is “elusive,” Time, Inc. v. Hill, 385 U.S. 374, 389 (1967); it

saddles the press with “the intolerable burden of guessing

how the jury might assess the reasonableness of steps taken

by it to verify the accuracy of every reference to a name,

picture or portrait.” /bid. Under a reasonable-care regime,

publishers and broadcasters will have to make pre-

publication judgments about juror assessment of such

diverse considerations as the size, operating procedures,

and financial condition of the news-gathering system, as

well as the relative costs and benefits of instituting less

frequent and more costly reporting at a higher level of

accuracy. See The Supreme Court, 1970 Term, 85 Harv.

L. Rev. 3,228 (1971). Moreover, in contrast to proof by

clear and convincing evidence required under the New

York Times test, the burden of proof for reasonable care

will doubtless be the preponderance of the evidence.

‘In the normal civil suit where [the preponderance of

the evidence] standard is employed, “we view it as no

more serious in genera! for there to be an erroneous verdict

in the defendant's favor than for there to be an erroenous

verdict in plaintiff's favor.” Jn re Winship, 397 U.S. 358,

371 (1970) (Harlan, J., concurring). In libel cases,

however, we view an erroneous verdict for the plaintiff as

most serious. Not only does it mulct the defendant for an

innocent misstatement .. . but the possibility of such error,

even beyond the vagueness of the negligence standard

itself, would create a strong impetus toward self-

censorship, which the First Amendment cannot tolerate.’

Rosenbloom, 403 U.S. at 50.

And, most hazardous, the flexibility which inheres in

the reasonable-care standard will create the danger that a

jury will convert it into ‘an instrument for the suppression

of those “vehement, caustic, and som ‘mes unpleasantly

sharp attacks ...” which must be protected if the guaran-

tees of the First and Fourteenth Amendments are to

prevail.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 277

(1971).

Gertz was a five to four decision by this Court. The

deciding vote in favor of the majority was cast by Mr. Justice

Blackmun, whose primary rationale was as follows:

By removing the specters of presumed and punitive

damages in the absence of New York Times malice, the

Court eliminates significant and powerful motives for self-

censorship that otherwise are present in the traditional libel

action. By so doing, the Court leaves what should prove to

be sufficient and adequate breathing space for a vigorous

press. What the Court has done, I believe, will have little,

if any, practical effect on the functioning of responsible

journalism.

Gertz, supra, 418 U.S. at 354 ( Blackmun, J., concurring).

Petitioner submits that the elimination of punitive damages

in libel cases involving mere negligence does not diminish the

motivation for self-censorship because the specter of actual

damages is a sufficient motive for self-censorship in such cases.

Judges and juries all across our country have been assessing

extravagant “actual” damages in libel actions against media

defendants. Such verdicts have indeed had a “killing effect” on

the functioning of responsible journalism.

12

Thus, the adoption of a “negligence” or “reasonable-care”

standard in libel actions is so lenient and vague that it has

resulted and will continue to result in intolerable self-censorship

by responsible journalists. This Court should therefore take this

opportunity to over-rule its decision in Gertz. Petitioner submits

that this Court should instead adopt the standard endorsed by

Mr. Justice Brennan in his plurality opinion in Rosenbloom and

his dissenting opinion in Gertz. Under this standard, states

would have to “apply the New York Times v. Sullivan, 376 U.S.

254 (1964) knowing-or-reckless-falsity standard in civil libel

actions concerning media reports of the involvement of private

individuals in events of public or general interest.” Gertz, supra,

430 U.S. at 361 (Brennan, J., dissenting).

The ruling by the New Hampshire Supreme Court that

private plaintiffs “may recover compensatory damages upon a

showing that the defendant was negligent in publishing a

defamatory falsehood,” 121 NH at , 428 A2d at 494, was

on an issue which had not been among the questions trans-

ferred and which had been neither argued nor briefed by either

party. By resolving this crucial issue in so summary a fashion,

the New Hampshire Supreme Court deprived petitioner of due

process.

The application of the prohibition against any state depri-

vation of life, liberty, or property without due process of law

requires a two-stage analysis. First, this Court must ask

whether the asserted individual interests are encompassed

within the Fourteenth Amendment's protection of “life, liberty

or property.” Second, if protected interests are implicated, this

Court must then decide what procedures constitute “due pro-

cess of law.” Ingraham v. Wrighi, 430 U.S. 651 (1977). See

also Meachum v. Fano, 427 U.S. 215, rehearing denied 429 U.S.

873 (1976).

In this case, petitioner Valley News certainly has protected

liberty and property interests in minimizing its potential liability

for defamatory falsehoods when publishing news stories on

matters of public interest. The standard of liability applicable

in libel actions against the petitioner will have wide-ranging

effects on every aspect of its operation, from its operating

13

procedure to its editorial policy to its financing and insurance

coverage. The right to follow a chosen profession free from

unreasonable governmental interference falls within the mean-

ing of the “liberty” and “property” concepts of the Fourteenth

Amendment. U.S. v. Robel, 389 U.S. 258 (1967); Greene v.

McElroy, 360 U.S. 474 (1959). The meanings of “liberty” and

“property” are broad indeed; they are left to gather meaning

from experience and they relate to the whole domain of social

and economic facts. Board of Regents v. Roth, 408 U.S. 564

(1972).

Since there are liberty and property interests at stake here,

due process requires that any adjudication be preceded by

notice and an opportunity to be heard appropriate to the nature

of the case. Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950). The notice must be reasonably calculated

under all the circumstances to apprise interested parties of the

pendency of the action and afford them an opportunity to

present their objections. Robinson v. Hanrahan, 409 U.S. 38

(1972); Armstrong v. Manzo, 380 U.S. 545 (1965); Mullane,

supra. The proceeding or hearing must be appropriate, fair,

adequate, and such as is practicable or reasonable in the

particular case. See, e.g., Boddie v. Connecticut, 401 U.S. 371

(1971). In the instant case, the petitioner was deprived both of

notice and the opportunity to be heard prior to the New

Hampshire Supreme Courts’ decision as to the standard of

liability to be applied in private individual libel cases.

14

CONCLUSION

Respondent is without question a public official. The facts,

as before the New Hampshire Supreme Court and cited in its

opinion, regarding his position within the governmental frame-

work of New Hampshire are undisputed. The Court below fell

into serious error in refusing to find respondent a public official

as a matter of law. A deprivation of petitioner's First Amend-

ment rights has occurred as a result of the refusal to find

respondent a public official.

In the case at bar, petitioner was given absolutely no notice

or Opportunity to be heard on the crucial issue concerning the

appropriate standard of liability prior to the New Hampshire

Supreme Court’s adoption of a negligence standard in libel

cases involving private plaintiffs. The issue was neither briefed

nor argued by any of the parties. Moreover, it was not one of

the issues transferred by the Sullivan County Superior Court.

The New Hampshire Supreme Court thereby violated petition-

er’s Fourteenth Amendment right to due process.

Respectfully submitted,

VALLEY NEws

By its Attorneys

BeLt, FALK & NORTON

A Professional Association

By Ernest L. BELL, III

Ernest L. Bex, III

and

By Epwarp Drew CHENEY

EpwarpD Drew CHENEY

APPENDIX

APPENDIX

Interlocutory Appeal from Ruling ..............:ccceceeeeereeeees

Opinion of the New Hampshire Supreme Court dated

April 3, 1981, in McCusker v Valley News..................

Defendant Valley News’ Motion to Set Aside Finding

on Issue Not Briefed and/or for a Reharing ................

oe by Monitor Publishing Co., Inc. dated April 13,

Order of the Sullivan County Superior Court dated May

A7

A2l

Fy BRED evtossccsovenssosnrenpustetenennessecosoieooneosoubenvesesennetoeeneonneeeee A24

2a

THE STATE OF NEW HAMPSHIRE

SULLIVAN, SS. SUPERIOR COURT

CIVIL #8591 FEBRUARY TERM, 1980

James F. McCusker

vs

Valley News

INTERLOCUTORY APPEAL FROM RULING

STATEMENT OF THE CASE

This is an action entitled “In a plea of trespass and

libel...” wherein plaintiff, a deputy sheriff, bailiff and former

high sheriff, sued a newspaper for certain statements regarding

his health and earnings published in a report on his brother's

political campaign. A copy of the article in question as

published in the Valley News on October 8, 1976, is attached.

Defendant filed a Motion for Summary Judgment wherein

it requested that based upon plaintiffs status as a public official

and/or a public figure it was entitled to a judgment in its favor.

Plaintiff countered with an affidavit and a statement of a

Superior Court justice [not under oath]. After hearing, the

Superior Court denied defendant's request and further stated

that the “affidavits submitted disclose a genuine issue of

material fact which requires a formal trial on the merits...”

Defendant timely excepted.

3a

STATEMENT OF THE FACTS

The article in question is attached and is self-explanatory.

Plaintiff was at the time a deputy sheriff, bailiff and had been

high sheriff of Sullivan County. The article attributes certain

statements about his health and earnings to certain members of

the county delegation. Plaintiff claims damages as a result of

these statements.

QUESTIONS OF LAW

The following questions of law are transferred in accord-

ance with RSA 491:17, Supreme Court Rules 8 and 9 and

Superior Court Rule 79:

A. Was the Superior Court in error in refusing to grant

Valley News’ Motion for Summary Judgment either in whole or

in part?

B. Is plaintiff a public official?

C. Is plaintiff a public figure?

D. Does plaintiff have an action at law based upon the

pleadings? ;

E. Was plaintiff's affidavit sufficient to support the Court's

denial of defendant’s motion?

REASONS FOR GRANTING AN

INTERLOCUTORY APPEAL

The Court’s attention is respectfully directed to the at-

tached Valley News’ Memorandum of Law filed in the Superior

Court that sets forth in detail its position upon the basic

question here as to whether plaintiff is a public official and/or a

public figure.

4a

It is essential that this determination be made prior to the

start of trial in this matter. As can be appreciated from the

ruling in Baer v. Rosenblatt, 108 NH 368 (1967) that the

Supreme Court has not passed upon the use of the summary

judgment procedure in newspaper libel cases. Rosenblatt was

decided in 1967 and the summary judgment statute (RSA

491:8-a) was expanded in 1973 to cover situations such as the

one at bar.

The consideration of this question by the Supreme Court

would serve to simplify the issues at trial and clarify issues of

general importance in the administration of justice in the field

of libel law. Also to be determined in this matter is whether or

not plaintiffs affidavit was sufficient to meet the challenge

presented by defendant's motion.

EXHIBITS ATTACHED

1. Plaintiff's writ.

2. Valley News article of October 8, 1976.

. Defendant’s Motion for Summary Judgment and Affi-

davit.

4. Plaintiffs Reply with Affidavit and Attachment.

5. Defendant’s Memorandum of Law.

6. Court’s Order, April 9, 1980.

/s/ Rosert H. TEMPLE

Presiding Justice

4-30-80

Sa

Sullivan

No. 80-197

James F. McCusker

v.

Valley News

April 3, 1981

Brown & Nixon P. A., of Manchester, ( Stanley M. Brown &

a. on the brief and Mr. Brown orally), for the plaintiff.

Bell, Falk & Norton, of Keene ( Ernest L. Bell, 111, on the

brief and orally), for the defendant.

PER CURIAM. The issue in this libel case is whether the

trial court erred in denying the defendant's motion for summary

judgment. We uphold the trial court.

On October 8, 1976, the defendant published an article

written by one of its staff writers, Jan Slusmon, who reported

that certain unnamed legislators had alleged that the plaintiff,

who at that time was 78 and the brother of the then sheriff of

Sullivan County, was “being paid $9,000 a year as a part-time

deputy sheriff, plus an undetermined amount of money in per

diem fees, despite the fact that he is barely ambulatory.”

The plaintiff brought suit alleging that the statements were

untrue and libelous. The defendant moved for summary

judgment, on the grounds that the plaintiff is, and has been

since 1944, a public official, that the article related to his official

conduct, that the publication is actionable only on a showing of

“actual malice,” and that there are no facts that would establish

such malice. Jan Slusmon also filed a supporting affidavit

claiming that he had accurately reported the legislators’ state-

ments and that he had no reason to doubt that the statements

were substantially true. The Trial Court ( Temple, J.) found

that there were genuine issues of fact as to whether the plaintiff

was a public official and as to whether proof of “actual malice”

6a

was required in order for the plaintiff to recover, and therefore

denied surnmary judgment. The defendant appealed.

If the plaintiff was a public official or a public figure, then,

in order to recover for injury to reputation, he would have to

prove not only that the defamatory statement was false but also

that the defendant published it with knowledge that it was false

or with reckless disregard for the truth. Gertz v. Robert Welch,

Inc., 418 U.S. 323, 42 (1974); Curtis Publishing Co. v. Butts,

388 U.S. 130, 162-65 (1967) ( Warren, C.J., concurring); New

York Times Co. v. Sullivan, 387 U.S. 254, 279-80 (1964). If

the plaintiff was neither a public official nor a public figure, then

he need not prove knowing falsehood or recklessness. Gertz v.

Robert Welch, Inc., 418 U.S. at 343-48. Instead, he may

recover compensatory damages upon a showing that the de-

fendant was negligent in publishing a defamatory falsehood.

See id. at 349-50.

Not all government employees are public officials within

the meaning of New York Times Co. v. Sullivan. In order to

show that the plaintiff is a public official under New York Times,

the defendant must prove that the plaintiffs “position in

government has such apparent importance that the public has

an independent interest in the qualifications and performance

of the person who holds it, beyond the general public interest in

the qualifications and performance of all government em-

ployees....” Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). In

the Rosenblatt case, the United States Supreme Court “remark-

ed” that the decision as to whether the plaintiff in a defamation

action is a public official is “for the trial judge in the first

instance.” Jd. at 88. However, in Baer v. Rosenblatt, 108 N.H.

368, 370-71, 237 A.2d 130, 132-33 (1967), decided after

remanded from the Supreme Court, we held that the Con-

stitution of this State, N.H. CONST. pt. I, arts. 14 and 20,

entitled the plaintiff to a jury trial on this issue with proper

instructions from the court. We reinforced this position in

Thomson v. Cash, 119 N.H. 371, 378, 402 A.2d 651, 656

(1979).

In remarking that the issue of whether an individual is a

public official was in the first instance for the trial judge, the

7a

United Siates Supreme Court was concerned with the possi-

bility that a jury, in making the determination, would be

influenced by its view of the defendant and his publication. See

Rosenblatt v. Baer, 383 U.S. at 88 n. 15. This concern is not

unlike that expressed in Jackson v. Denno, 378 U.S. 368

(1964), with respect to the determination of the voluntariness

of confessions. We are of the opinion, however, that this

concern can be dispelled by careful instructions to the jury and

by the use of a special verdict on the public official issue. See

Baer v. Rosenblatt, \08 N.H. at 371, 237 A.2d at 133.

Whether this issue shou. be “tried separately and in

advance of other issues” is a matter best left to the sound

discretion of the trial court. Jd.

What we have said with regard to the public official issue

also applies to the issue of whether the plaintiff was a public

figure as defined in such cases as Wolston v. Reader’s Digest

Assn. Inc., 443 U.S. 157, 164 (1979); Time, Inc. v. Firestone,

424 U.S. 448, 453 (1976); and Gertz v. Robert Welch, Inc., 418

U.S. at 344-47.

The plaintiff in this case was the sheriff of Sullivan County,

an elective office, from 1943 to 1966. At the time of the

publication in question, he was a deputy sheriff under an

appointment of his brother, then the sheriff. In his capacity as

deputy sheriff, the piaintiff ’s duties consisted of serving process,

interviewing complainants, doing investigative work, and acting

as bailiff for the superior court. The plaintiff has served as

president of the New Hampshire Sheriff's Association. In 1955,

he organized the Sullivan County Peace Officers’ Association.

In the late 1930's, he was the president of the Permanent

Fireman’s Association, and in 1939 he authored a legislative

bill providing for firemen’s retirement. He has been active over

the years in political campaigns and has spoken to service and

women’s clubs.

The plaintiff ’s position as a deputy sheriff does not place

him in the category of a public official as a matter of law.

Neither can we say that the plaintiff was a public figure as a

matter of law. The trial court was correct in holding that

genuine issues of fact existed which required the denial of

summary judgment for the defendant.

We also agree with the plaintiff that, even assuming that

the New York Times test of “actual malice” does apply, there

are genuine issues of fact in this case. Even if there may be

cases in which summary judgment would be appropniate, this is

not one of them. See Hutchinson v. Proxmire, 443 U.S. 111,

120 n. 9 (1979); Thomson v. Cash, 119 N.H. 371, 402 A.2d 651

(1979).

Exceptions overruled; remanded.

Grimes, C. J., did not sit.

9a

THE STATE OF NEW HAMPSHIRE

SULLIVAN, SS. 1981 TERM

APRIL SESSION

SUPREME COURT

#80-197

James F. McCusker

’.

Valley News

DEFENDANT VALLEY NEWS' MOTION TO

SET ASIDE FINDING ON ISSUE NOT

BRIEFED AND/OR FOR A REHEARING

NOW COMES defendant Valley News and says:

1. This is a libel case by a deputy sheriff against a daily

newspaper.

2. On April 3, 1981, this Court decided an Interlocutory

Appeal in which the questions of law transferred by the

Superior Court were:

A. Was the Superior Court in error in refusing to

grant Valley News’ Motions for Summary

Judgment either in whole or in part?

B. Is plaintiff a public official?

A

Is plaintiff a public figure?

D. Does plaintiff have an action at law based upon

the pleadings?

E. Was plaintiff's affidavit sufficient to support the

Court's denial of defendant's motion? (p2 IA)

10a

3. Plaintiff briefed and argued the following questions

presented for review:

Does the New Hampshire Constitution entitle

the plaintiff to the decision of a jury on the

question of whether he is a public official?

As a deputy sheriff and bailiff at the time of the

publication, was the gg a “public official”

within the meaning of New York Times vy.

Sullivan?

Is the plaintiff a public figure either for all

purposes or for the limited purpose of the

publication in question?

Was the Superior Court in error in refusing to

grant the Motion for Summary Judgment either

in whole or in part? (pl PLB)

4. Defendant briefed the following “Questions Presented

for Review”:

a

y 3

3,

Is plaintiff a public official?

Is plaintiff a public figure?

Does plaintiff have an action at law based upon

the pleadings?

Was plaintiff's affidavit sufficient to support the

Court's denial of defendant's motion?

Was the Superior Court in error in refusing to

grant Valley News’ Motions for Summary

Judgment either in whole or in part? (pl! DB)

5. The defendant's arguments in this matter were as

follows:

Plaintiff, as a deputy sheriff and superior

court bailiff, was at the time of the alleged

libel a “public official” and as such defendant

is entitled to a summary judgment on its

behalf on this issue.

Il. Plaintiff, as a deputy sheriff, superior court

bailiff and as one who for at least the past

forty years has thrust himself into the public

life of Sullivan County was at the time of the

alleged libel a “public figure” and as such

defendant is entitled to a summary judgment

on its behalf on this issue.

Ill. Summary judgment is the proper remedy in

this case and the Superior Court was in error

when it ruled that there were genuine issues

of material fact insofar as the issue of public

official was concerned. (pl BD)

6. On Page 2 of the April 3, 1981, slip opinion, the Court

rules:

If the plaintiff was neither a public official nor a public

figure, then he need not prove knowing falsehood or

recklessness. Gertz v. Robert Welch, Inc., 418 U.S. at 343-

48. Instead, he may recover compensatory damages upon

a showing that the defendant was negligent in publishing a

defamatory falsehood. See, /d., at 349-50.

7. The findings set forth in paragraph 6 were not argued

or briefed by either party before this court and were not in the

questions transferred.

8. The matters set forth in paragraph 6 have not been

decided by this Court since the decision in Gertz v. Robert

Welch, Inc., 418 U.S. at 343-48 (1974). These issues are of

considerable importance to not only the parties involved in this

particular litigation but to all parties involved in defamation

litigation in this state.

9. It is inequitable and unfair not only to the defendant in

this case but also to all those involved in any sort of public

information work to have the rule of simple negligence adopted

in defamation cases without the matter being fully presented,

briefed, and argued to this Court.

10. Defendant, and any amicus curiae that are interested,

should be allowed the right to brief and argue the point set

12a

forth in paragraph 6 in the event that the Court does not strike

the material set forth in paragraph 6.

WHEREFORE, defendant Valley News moves:

A. The decision of April 3, 1981, be reconsidered;

B. The material set forth in paragraph 6 above be stricken

from the decree in this matter;

C. Or in the alternative, the issue of the standard of care in

a nonpublic official, nonpublic figure defamatory falsehood

(libel) case be reconsidered and the defendant, and others, if

interested, be allowed to brief and argue this particular point;

and

D. For such other relief as may be equitable and just.

Respectfully submitted,

VALLEY News

By its Attorneys

BELL, FALK & NORTON

A Professional Association

/s/_ By Ernest L. BELL, III

Ernest L. Bell, III

I hereby certify that a copy of the within motion was

forwarded to Stanley M. Brown, Esq., this 8th day of April,

1981.

/s/ Ernest L. Bet, Ill

Ernest L. Bell, Ill

13a

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

1981 TERM

APRIL SESSION

No. 80-197

James F. McCusker

v.

Valley News

MOTION

Now Comes Monitor Publishing Co., Inc. (hereinafter

“Monitor Publishing”), publisher of the Concord Monitor, a

daily newspaper having its principal circulation in the Greater

Concord, New Hampshire area, and respectfully moves the

Court pursuant to Rule 21 of the Rules of the Supreme Court to

reconsider its decision in McCusker v. Valley News (decided

April 3, 1981) as follows:

(1) Monitor Publishing has requested and been pro-

vided with a copy of the motion for rehearing filed by the

Valley News in this action.

(2) As the publisher of a daily newspaper, Monitor

Publishing is a potential defendant in libel actions in-

stituted by private figures. It, therefore, has a real and

substantial interest in the standard of care applicable to a

publisher of an allegedly defamatory falsehood in a private

figure libel action. Such standard of care also is of urgent

and grave concern to members of the press who publish or

broadcast in this state.

l4a

(3) Based upon the motion for rehearing filed by the

Valley News, Monitor Publishing understands that in the

interlocutory appeal of this action neither party briefed or

argued the question of the appropriate standard of care in

a private figure libel action.

WHEREFORE, Monitor Publishing Co., Inc. joins the Valley

News and respectfully requests the Court either to delete the last

sentence of the first full paragraph of page 2 of the Slip Opinion

or, alternatively, to grant the Valley News’ motion for rehearing,

and permit the parties and amicus curiae parties to file briefs

and argue this important question of law; and for such other

relief as may be just.

Respectfully submitted,

MONITOR PUBLISHING Co., INC.

By its Attorneys,

OrrR AND RENO, P. A.

95 North Main Street

P. O. Box 709

Concord, New Hampshire 03301

/s/_ By __WILLIAM L. CHAPMAN __

William L. Chapman

Dated: April 13, 1981

15a

CERTIFICATE OF SERVICE

I, William L. Chapman, Esquire, hereby certify that on this

13th day of April, 1981, I have caused a copy of the foregoing

Motion to be mailed to Ernest L. Bell, III, Esquire, attorney for

Valley News, and Stanley M. Brown, Esquire, attorney for

James F. McCusker.

/s/ WILLIAM L. CHAPMAN

William L. Chapman

16a

SUPERIOR COURT OF NEW HAMPSHIRE

SULLIVAN COUNTY

May 7, 1981

Re: 8591 McCusker v. Valley News

Gentlemen:

Please be advised that on May 7, 1981 the N.H. Supreme

Court made the following order relative to the above-captioned

case:

4-3-81 Exceptions overruled; remanded.

4-21-81 Motion for rehearing denied.

A certificate of said order dated May 4, 1981 was filed in

this office on May 7, 1981.

Very truly yours,

/s/ HENRY SHAHEEN

Henry Shaheen

Clerk