Petition — Alonzo W. Lawrence and James Simpson v. Bauer Publishing & Printing Ltd.

Supreme Court brief1982

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i ipo CoO

DER L. STEVAS

IN THE SUPREME COURT OF THE UN TADBE

OCTOBER TERM, 1982 —

ALONZO W. LAWRENCE

and JAMES SIMPSON,

Petitioners,

)

BAUER PUBLISHING & )

PRINTING LTD., a )

corporation, KURT )

CHRISTOPHER BAUER, )

JEFFREY LANCE )

BAUER and PATSY )

BONTEMPO, )

)

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

Harry Green

Kushner & Riley

70 Schanck Road

Freehold, New Jersey

07728

(201) 431-0300

Attorney for Petitioners

1. In a libel action, to what extent

does the voluntary involvement of a plaintiff g

in a public controversy render him a public sg

figure? | oi ae

2. Ina libel action, what proof is h 5

necessary in determining actual malice fog ys

a public figure? Tat ? 2 é

TABLE OP CONTENTS

Questions Presented... ..ccecececcees

Opinion BOLO er cbeccvescdscvesectéeces

Sadiabiothins ss hss cckte ith duelandh ox 3

Constitutional Provisions......+-«++ 4

Statement. .ccccccccscecvoscesesccsecs

Argument bo Point I Seeccccoscesceaessad

‘THE UNITED STATES SUPREME

COURT SHOULD GRANT CERTIFICA~

TION IN ORDER TO RESOLVE THE

ISSUE OF THE EXTENT TO

WHICH VOLUNTARY INVOLVEMENT

OF A PERSON IN A PUBLIC

PNONTROVERSY RENDERS HIM A

PUBLIC FIGURE

Argument - Point II eee eee eee ween ee e 3B

THE SUPREME COURT SHOULD

GRANT CERTIFICATION ON THE

ISSUE OF THE EXTENT OF PROOF

NECESSARY TO RAISE A JURY

QUESTION ON ACTUAL MALICE

FOR A PUBLIC FIGURE IN A

LIBEL CASE

SeMOLUBLORd'c 000 ccebsvecbhbaedsaedeo. $3

Appendix:

Opinion of the New Jersey :

Supreme Court Lawrence vs.

Bauer, N.J.__, ee

C3902) ccs ccdsedebercveepeudees App.1 |

TABLE OF CONTENTS ~Page Two

Including dissenting opinion

of Justice Schreiber..........-App.38

And a copy of Article presented

in Rahway News-Record on

ent 9, 1975 attached as

appendix to Justice Schreiber's

OPINION. .ceecccccccscccesccess sApp.67

Opinion of the New Jersey

Superior Court, Appellate Divi-

sion, upholding jury verdict

for petitioner Simpson and up-

holding trial court's order for

new trial for petitioner

Lawrence, reported in 176 N.J.

Super.378, 423 A2d 655 (1980)..App.68

Ruling of Trial Judge, the Hon.

Bryant W. Griffin, J.S.C. on

October 118, 1979 that titioner

Lawrence was a public figure

and petitioner Simpson was a

private figure.....sseeeeeeess App.100

Copy of Article printed in

Rahway News-Record on

April 17, 97S. ceccsecccccce ccAPp.106

% Garrison vs. Louisiana, 49

; 379 U.S. 64, 13 L.Ed.2da 125,

85 S.Ct. 209

‘ ’ Gertz Vs. Welch, Inc., 10,

hy 41 L.Bd. 24 789 32,

4 Hutchinson v. Proxmire, 26,

; 443 U.S. lll, 99 $.Ct.2675, 43

a Lawrence vs. Bauer,

a 176 N.J.Super 328, 423 2,

, A2d 655

; Lawrence vs. Bauer, «

f oa N.J. 0). aia ne 2,

\ Kia ss (9 8BY 13

w" St. Amant vs. Thompson, 4l,

: 390 U.S. 727 20 L.Ed.24a 43,

! 262 51

Me Wolston vs. Readers Digest Ass'n. 25

Inc.

j 443 U.S. 157, 61 L.Ed.24 450

STATUTES

“a New Jersey Statutes tated 15

ns (N.J.S.A.) 40:69A- 85 |

HLT... 402 69A~286 Pies. Ben

MTB. O9AH2OB 18

hl lc a

a Oe he ”)hU Ch

QPINIONS BELOW i

The opinion of the Appellate Division

upholding the jury's verdict with respect

to the petitioner James Simpson and the trial

court's decision ordering a new trial for the

petitioner Alonzo W. Lawrence is reported in

176 N.J. Super 378, 423 A2d 655 (App. Div.

1980) and appears at App.68-99.

The opinion of the New Jersey Supreme

Court reversing the verdict for the peti-

tioner Simpson,vacating the order granting

Lawrence a new trial and entering judgment

for all defendants is reported at N.J.

A2d (1982) and appears at App.1-37.

The dissenting opinion of Justice

Schreiber upholding the jury verdict in

favor of the petitioner Simpson against all

defendants except Bontempo and upholding

the order for a new trial for the peti-

_tioner Lawrence appears at App.38-67.

’

1¢

incline. siubien 28 U.8.C.Sec. 125713). The

New Jersey Supreme coven decision was

decidea on ‘April 27, 1982 (App. 1) and this

petition for writ of certiorari is timely

filed thereafter. if

2a |

This case involves the First Amendment

to the United States Constitution which

provides:

Congress shall make no law respecting

an establishment of religion, or prohibit-

ing the free exercise thereof; or abridg-

: ing 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.

This case also involves Section One

tite on oe ae al

of the Fourteenth Amendment to the United

: : States Constitution which provides:

All persons born or naturalized in the

; United States, and subject to the juris-

: diction thereof, are citizens of the ;

; United States and of the State wherein

they reside, No State shall make or en- _ 4

force any law which shall abridge the

Person within its

’

‘

The two plaintiffs in this case are

Alonzo W. Lawrence and James Simpson, who

were respectively president and secretary-

treasurer of an organization called the

Rahway Taxpayers Association. The defendants

are the Bauer Publishing and Printing Ltd.,

the publisher of a local newspaper called

the Rahway News Record, its editor, publisher,

and majority stockhoider, Kurt Christopher

Bauer, his brother, Jeffrey Lance Bauer, a

minority stockholder, and Patsy Bontempo, a

reporter for the newspaper. On January 9,

1975, the Rahway News Record printed in

banner headlines against the top of the front

page the following: “FORGERY CHARGES MAY

LOOM FOR LAWRENCE, SIMPSON” (App. 67). The

articles that accompanied this headline said

in part as follows:

"In separate actions city attorney

Alan Karcher ruled the petitions filed

by the officials of the Rahway Tax-

payers Association are improper and

attorney Theodore J. Romankow was

asked to take action by city

officials against leaders because

of ‘irregularities’ in the petitions.

"The Rahway News-Record learned

Mr. Romankow was empowered to handle

a case against Alonzo W. Lawrence,

. president of the association, and

James Simpson, the group's secretary-

treasurer.

"The city's case would be based

on charges that forgery was involved

in the poser e Somat of approximately

5,000 signatures which the two men

filed with the city clerk Robert W.

Schrof on December 27, the News-Record

was told.

“In connection with this the men

would also be charged with false

swearing of oaths and affidavits, it

was asserted." (App.67)

On April 17, 1975, as a result of a

demand for a retraction by the plaintiffs’

attorney, the Rahway News-Record published a

second article on the lower lefthand corner

of the first page with the following head-

lines, “NEWS-RECORD ASKED TO RETRACT ARTICLE

ON FIREHOUSE BATTLE" (App. 106 ). The

article that accompanied this headline said

in part as follows:

“The Rahway News-Record was asked

to retract statements made in the

January 9 edition concerning the

article headlined ‘Lawrence warns

mayor on libel’ ‘City attorney rules

association petitions improper; for-

gery charges may loom for Lawrence,

Simpson. '

"The News-Record was told prior

to publication of the January 9

edition by a source in the administra-

tion that city officials were turning

the petitions over to the local

prosecutor, which in fact they did,

to investigate allegations of forgery

and false swearing of oaths.

"It should be clearly stated that

in each case where the charges were

made, The News-Record was careful to

note it ‘was told,’ it ‘learned' or

‘it was asserted. '

"The fact of the matter is that

the Rahway Taxpayers Association, of

which Messrs. Lawrence and Simpson

are officers, announced in a paid

newspaper advertisement that it was

‘spearheading’ a petition drive seek-

ing to bar added appropriations for

the new firehouse.

"The gentlemen, thus, are in fact

associated with the cetibiene aid the

pag cons are in fact the subject of

an investigation for allegations of

{Ape ibs false wonrtey of py PP

The subtle difference between the

first and second article should be noted

and will be discussed in more detail in the

argument. In the January 9, 1975 article,

the article stated specifically that

Mr. Romankow, the prosecutor, was empowered

to handle a forgery case against Lawrence and

Simpson as well as charges of false swear-

ing against both men. The second article,

which all parties admit was not a retraction,

did not state that Lawrence and Simpson were

being charged with forgery and false swearing--

only that they are associated with the peti-

tions and the petitions are under investiga-

tion for allegations of forgery and false

swearing. The distinction made here in the

two articles is important in determining

whether or not actual malice existed.

In any event, it was the publication

of these two articles that led to the

present law suit. While there were many

issues argued in various stages of the

proceedings, the decision of the New Jersey

Supreme Court in setting aside a verdict for

the defendant Simpson and an order for a4 new

trial granted by the trial court to Lawrence

rested its reversal on federal questions.

The majority decision found that both Lawrence

and Simpson were public figures and it also

found that as public figures, the standard

of actual malice required in the case of

Gertz v. Nelch, 418 U.S. 373, 94 S.Ct. 2997,

41 L.Bd.2a 769 (1974) was not met.

The question of whether the plaintiffs

were public figures was not raised by the

defendants in their pleadings. Instead,

the defendant raised the issue for the first

time at the time of the trial by making a

motion to amend their pleadings to set

forth this issue. The trial court granted

this application. All of the issues were

then tried at the same time, including the

issue of whether the plaintiffs were public

figures. The defendant introduced into ;

evidence in eupport of his contention that

the plaintiffs were public figures, some

twenty newspapers articles published by

the defendant's newspaper, all of which

mentioned Lawrence and only one of which

mentioned Simpson.

At the end of the trial, the trial

court ruled that the question of whether the

plaintiffs were public figures was a question

of law to be determined by the court. The

trial court then found that Lawrence was a

public figure and that Simpson was a private

figure. Its findings in this regard or

both plaintiffs are set forth in the appendix

(App.100-105). The Court then found no actual

malice on the part of the defendant and

dismissed Lawrence's complaint. The Court

allowed the Simpson case to go to the jury,

which awarded a verdict of $22,500 in favor

of Simpson and against the defendant

newspaper and the defendant Baver. The jury ‘*

ruled in favor of the reporter Bontempo.

(oo. Bek Hie tan hil aca

However, on application made by the plain-

tiff the trial court reversed its decision

concerning Lawrence on the jround that it

had made a mistake. The trial court, in

reversing its original decision stated

that it believed there was sufficient

evidence of actual malice to go to the jury

and granted Lawrence's application for a new

trial under the Gertz v. Welch, supra

standard. The defendant's Leave to Appeal

was granted by the Appellate Division and

the Appellate Division upheld the decision

of the trial court with wecbdus to both

wVawrence and Simpson (See App. 68-99). The

defendants, thereafter, filed another motion

with the New Jersey Supreme Court to allow

the defendant to appeal, which was granted

by the New Jersey Supreme Court, who

reversed the decision of the trial court

and the Appellate Division (App. 1- 37) on

the ground that Lawrence and Simpson were

both public figures and that no actual

malice was shown. There was a dissenting

opinion by Justice J. Schreiber who did

uphold the trial court's decision ‘App. 38-67).

Justice Schreiber found that Lawrence should

have been a public figure, that Simpson was

a private figure and that there was actual

malice shown sufficient to go to the jury

on Lawrence's complaint.

Since the New Jersey Supreme Court's

reversal was based on its interpretation of

the federal law, we shall confine ourselves

to the evidence that was submitted on the

question of whether or not Lawrence and

Simpson were public figures and the evidence

concerning actual malice on the part of the

defendants.

On the question of public figure, the

evidence was as follows:

1. The Rahway News-Record is a small

community paper with a circulation of

approximately 4,800. It is the only local

newspaper and the only paper which carried

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the articles concerning the controversy

(an out of town paper which had a small

circulation in Rahway did not publish

any article about the controversy).

This newspaper was designated also as the

official publication by the City of

Rahway and as the official publication,

published all the notices that the City had

to publish that was required by law such

as ordinances, resolutions, etc. This

designation as the official newspaper

brought in significant revenue to the

newspaper.

2. The controversy that arose in the

City of Rahway in 1974 concerned whether or

not an additional $100,000 should be spent

for the construction of a firehouse. The

municipal council had passed an ordinance

appropriating additional revenue for its

construction. The Rahway Taxpayers Associa-

tion spearheaded a drive to place the issue

on the ballot by means of the referendum

——

process. This association did not take a

position on whether oz not the voters

should approve or disapprove the amendment

to the ordinance but was concerned only |

with the question of whether the voters

: should have the right to vote on the ques- |

tion. Under state law, N.J.S8.A.40:69A-185,

to place the issue on the ballot, twenty~

five (25%) percent of the registered voters

of Rahway needed to sign a petition request~

ing a referendum on the ordinance. Further-

more, under N.J.S.A.40:69A-186, there had

to appear on each petition paper, the names

and addresses of five voters designated

as the committee of the petitioners.

Simpson and Lawrence where two of the five

committee of the petitioners.

3. The plaintiff Lawrence, as

president of the Rahway Taxpayers Associa-~

? tion, led the drive to place the matter on

the ballot. The nineteen or twenty

articles published by the Rahway News-Record |

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concerning the controversy mentioned Law-

rence in each article. Simpson, however,

was mentioned in only one article. Approxi-

mately 20 - 25 pecple obtained signatures

on the petition sheets including Lawrence

and Simpson. Lawrence obtained approximately

200 and Simpson approximately 250 names.

Over 5,000 names were obtained on the peti-

tions which exceeded the 25% requirement and

Lawrence and Simpson were in a picture pub-

lished by the Rahway News-Record in

December, 1974 showing the petitions being

delivered to the City Clerk. Lawrence and

Simpson had made a practice of attending

the monthly meetings of the municipal

council. After the newspaper articles,

Simpson withdrew from attending these

meetings. At the trial of this matter none

of the prospective jurors, including

several who were from Rahway, had ever

heard of Lawrence or Simpson or had read

about the controversy. re

This summarizes the evidence that was

submitted in connection with the determina-

tion of the public figure status of the

plaintiffs. Based on this evidence, the

ad trial court and the Appellate Division and

the dissenting opinion of the New Jersey

Supreme Court found that Lawrence ‘vas a

public figure and Simpson was not. The

majority opinion of the New Jersey Supreme

Court found on the evidence that both

Lawrence and Simpson were public figures.

With regard to the question of actual

malice, the evidence produced at the trial

was as follows:

1. The only source for the first

article of January 9, 1975, was Joseph

é Hartnett, who had been appointed business

| administrator of the city in January, 1975.

pier . Hartnett had no official duties in fs

3 Sie with the filing or examination :

reteeeteed |

these duties to the city clerk (N.J.S.A.

69A-188). Mr. Hartnett testified as a 41

witness for the defendant and testified .

that he only told the defendant Bauer and

the reporter Bontempo that the petitions

were being investigated for forgery and

false swearing. He stated emphatically

that he neve. told the newspaper that

Lawrence and Simpson were being investi-

gated or charged with either false

swearing or forgery. Insofar as forgery

is concerned, Hartnett testified that the

investigation of forgery concerned such ¥i

instances as a husband signing a petition —

for his wife or vice versa. With regard to —

the false swearing charge the investiga-

tion centered on whether or not the wegui ner

ment of N.J.S.A.40:69A~-186 was met; namely, R

that there should be an affidavit attached

to each circulator of the petition that as

he personally circulated the paper and that _

the signatures were made in his presence.

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Bauer and Bontempo had both testified

that Hartnett was a reliable source in the

past.

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After the defendant received the letter —

from the plaintiff's attorney demanding a

retraction, the defendant Bauer became

alarmed and consulted his attorney. His

— > 64

st ie +

attorney, Mr. Leo Kahn, then arranged for

a four-way conference call between Mr. Bauer,

Mr. Kahn, the source, who was Joseph Hart-

nett, and Mr. Theodore Romankow, who was

the local prosecutor who had been empowered

to make an investigation of the petitions.

The tettimony concerning this conversation

was uncontradicted and Hartnett made it :

quite clear in his testimony that in thati¥con-

. versation Hartnett again told Baver that he.

never said that Lawrence and Simpson were ae

under investigation for forgery or false ¥

Swearing, nor were they guilty of those 4

two crimes. He again reaffirmed that oer:

was an investigation being sade of the

ot Peas bi

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petitions but not of Lawrence or Simpson.

Bauer never denied that this was what

Hartnett told him in this phone call. What

Bauer choose to rely upon was a letter that

Mr. Romankow, the prosecutor, wrote as a

/ result of this telephone conversation. This

letter, which was dated April 17, 1975

stated as follows:

“It appears a question has arisen

whether I was requested by the ad-

minstration to investigate allega-

tions of forgery and false swearing

of oath concerning petitions seek-

ing to bar added appropriations for

the new Rahway Fire House circulated

by the Rahway T rs Assocation,

whose leaders inc Alonzo W.

Lawrence and James Simpson.

"Please be advised that I did

conduct an investigation through the

Rahway Police t and I

then requested the matter be

forwarded to the Union County

Prosecutor's Office. The file, to “

my understanding, was forwarded.”

Mr. Romankow testified as a witness for th<«

Gefendant and admitted on cross-examination

that he did not mean by that letter to state

“Bes

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Orly ey Meal oie PR Sere WA» ley 4 rt. se ale ous. a:

Oe LP yee % ae a iigaae

ie investigation and were going to be charged

2 with forgezy and false swearing. Bauer

5 changed his tactics with the April 17th

, statement. ;

He did not retract the allegations

a made against Lawrence or Simpson concern-

ing forgery and false swearing in the

January 9th article even though he now

knew again that Hartnett had stated that

he had never told Bauer that Lawrence and

Simpson were being charged or being

investigated for these crimes. (It is

conceded by the defendant that the

April 17th article was not a retraction.)

Bauer never denied that this was what

° Hartnett told him in that phone conversa-

tion. Instead the defendant attempted, by

the April 17th article, to give the

4 impression that the April 17th article was An

y ; " x

consistent with the January 9th article. ¢

Bes Instead, there was a clear shift in emphasis . i

| dass Ma wpe Dnt entighs =

now Bauer was only stating that investi-

gation was being made of only petitions jg

circulated by the Rahway Taxpayers Associa-

tion, “whose leaders include Alonzo WwW.

Lawrence and James Simpson.” Bauer now

knew without a doubt that Lawrence and

Simpson were not investigated or charged

with these crimes but he chose not to

retract but instead hoped that a reader

would overlook the clear error that he

had made in the January 9th article.

It was on this evidence that the trial

court reconsidered its dismissal of

Lawrence's complaint. The trial court

frankly admitted it had overlooked the

significance of the evidence that lead to

the April 17th article. The Appellate

Division agreed with the trial court but

the New Jersey Supreme Court found that _

1 ld not sev actual males the pant

ARGUMENT

POINT I. THE UNITED STATES SUPREME

In 1974, the United States Supreme

Court in Gertz, v. Welch, supra, offered its

general definition of “public figures":

“For the most part those who attain

this status have assumed roles of

special prominence in the affairs

of society. Some occupy positions

of such persuasive power and influ-

ence their deemed public figures for

all purposes, more commonly, those

classes public figures have thrust

themselves to the forefront of parti-

eular public controversies in order

to influence the resolution of the

issues involved. In either event,

they invite attention and comment."

Since this decision, the United States

Supreme Court has not had an occasion

to consider to what extent the voluntary

involvement of a person in a public contro-

versy renders him a public figure. While

the Court, since its decision in the

Gertz v. Welch, supra has given considera-

PN Sere) Sele

> on 2. ae reat . '

7 . :

my ‘“

tion to what constitutes a public figure, |

these cases have dealt only with the |

person's involuntary involvement in a

public controversy.

Thus, in Wolston v. Readers Digest

~ Ass'n, Inc., 443 U. S.157, 61 L.Ed.2d 450

(1979), the Court considered a situation

where the trial court had found that a |

plaintiff had fallen into the second

category of public figure, one who has

thrust himself to the forefront of a

particular controversy in order to influ-

ence the resolution of the issue involved.

In this case, the lower court found that

the petitioner was connected with Soviet

espionage in the 1940s and 1950s. The

United States Supreme Court, however,

reversed the decision of the lower court

stating that the plaintiff was not dragged

willingly into the controversy and, there-

be fore, did not “voluntarily thrust" or A

: inject himself into the forefront of the :

public controvery surrounding the investi-

gation of Soviet Espionage in the United

States. In reversing the lower court's

decision the Supreme Court made the

following statement:

"Petitioner's failure to ‘appear

before the grand jury and citation for

contempt no doubt were “newsworthy ,"

but the simple fact that these events

attracted media attention also is

not conclusive of the poublic-figure

issue. A private individual is not

automatically transformed into a

public figure just becoming

involved in or associated with a

matter that attracts public attention.

To accept such reasoning would in

effect re-establish the doctrine ad-

vanced by the plurality opinion in

Rosenbloom v. Net ronedia, Inc., 403 U.

concluded that

the New York Times standard should

extend to defamatory falsehoods

relating to private persons if the

statements involved matters of public

eR geet ty oemrpeg nigh Boy peon ;

this pos on in tz n Fires ;

however, and we reject it again tater

A libel defendant must show more than

mere newsworthiness to Lara

application of the demanding burden of

Firestone, ait v.ser at th

In Hutchinson v. Proxmire, 443 U.S. 111,

- 26 >

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~< “ ~, we mn a wi oe os wen ve ©. x a

. =

United States Supreme Court reversed a

decision of the District Court which held

that the petitioner was a public figure

because the petitioner had successfully

obtained federal funds which were reported

in a newspaper and because the petitioner

had access to the media to respond to the

defendant-senator's giving the petitioner

"A Golden Fleece Award". In reversing

the United States Supreme Court stated

that, “Clearly, those charged with defama~

tion cannot, by their own conduct, create

their own defense by making the claimant

a public figure." The Court held not only

did the petitioner aot become involved in

any such controversy but that he had not

“assumed any role of public prominence in

the broad question cf concern about expen-

ditures". The Supreme Court further held:

"Finally, we cannot agree that

Hutchinson had such access to the

media that he should be classified

as a public - Hutchinson's

Fleece Award. He did not have

the regular and me eee

access to the media that is one

of the accouterments of having

become a public figure."

The present case for the first time

explores the voluntary involvement of an

individual in a public controversy and the

extent to which his involvement renders

that person a public figure. In this case,

there are two plaintiffs with markedly

different degrees of involvement in the

controversy. The differences are set forth

in the trial court's opinion which we have

attached (App.100-105) where the court found

that Lawrence was a public figure and

Simpson a private figure. This is explored

also in both the majority opinion of the

New Jersey Supreme Court which ruled that

both petitioners were public figures (App.

24-29) and the dissenting opinion which

upheld the trial court's determination that

Lawrence was a public figure and Simpson

&@ private figure (App. 42-53).

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~ ° 7 i. . a “ihe nS Oa h wt) } “ ; ry

“es ~The Ag: al ; ai i 4

wed ees Bea bl 1 tie Pe a

oo wie: Tt further found that Lawrence

The standard set forth in Gertz v.

Welch, supra in determining the status of

a public figure was whether the individual

had thrust himself to the forefront of the

controversy in order to influence the

resolution of the issue involved. In

arriving at different decisions, two

factors were considered: (1) the action

of each individual plaintiff; and (2)

the defendant newspaper's reporting of the

activity of the plaintiff.

The majority opinion cited both factors

in deciding that both Lawrence and Simpson

were public figures (App. 24-29).

With regard to Lawrence, the majority

Opinion found that he was the founder of

the Rahway Taxpayers Association, he re-

gularly attended council meetings and at

one public meeting he was one of only five

(5) people permitted by the City Council

to speak on this igsae on behalf of the

initiated the petition drive, he was one

of five persons whose name appeared on each

petition sheet end that he collected at

least 200 signatures. With regard to how

the defendant newspaper handled Lawrence,

the court found that he provided press

releases to the newspaper and that his name

had been mentioned in approximately 20

published articles in a few weeks prior to

the publication of the January 9th article.

It held that this was sufficient to justify

the finding that Lawrence was a public

figure. (App. 24-27).

With regard to Simpson, the court

found that he was secretary/treasurer of

the Rahway Taxpayers Association and

also one of the five member committee of

petitioners whose name appeared on each

petition as required by law. Simpson

collected eupcomimately 250 out of the

over 5,000 signatures. The only involve~

ment he had with the media vas that he had

his picture in the paper in December, 1974

when the petitions were delivered to the

City Clerk. On this basis the Court found

that Simpson was a public figure (App. 27-

29).

The dissenting opinion of New Jersey

Supreme Court put Simpson's involvement in

the proper focus (App. 49+52). It found

that Simpson had written two (2) letters

to the newspaper concerning the controversy

and the second letter was in reply to a

critic of the first letter he wrote. Of

the thirteen (13) articles in the news-

paper concerning the controversy, Simpson

was only mentioned in one and this was an

article in which Simpson was in a croup

picture delivering “he petitions to the

City Clerk. It found that he had obtained

between 250 and 275 signatures on the

petitions out of approximately 5,000 and

that he was one of twenty who had done the

same. The dissenting opinion found that

a review of the limited involvement of

Simpson did not make Simpson a public

figure. He did not, in other words, thrust

himself “to the forefront of the controversy.

The court found that Simpson did not

qualify for a public figure by virtue of

the requirements of the Gertz v. Welch,

supra that the individual became a public

figure because of the controversy and

because he did not achieve special

prominence in the resolution of the issue

(App. 43-44). Justice Schreiber made the

following conclusion:

"One could reasonbly conclude,

as did the trial court, that

Simpson bad not risen to that

ial prominence hy virtue

° s activities on the fire-

house controversy. He had not

sought to draw attention to

himself to influence the public.

He was part of a team of

citizens who attempted to have

the public vote on the issues.

Though his role may have been

trial court's comments are worthy

of repetition: o

He was not in the vortex of

this fight. He did not get

the newspaper publicity. He

acted more or less as a

: private citizen in attending

meetings, making an occasional

dispute. There's a dispute

. in the number of speeches he

made. He talked ... occasion-

ally at least and I do not

think he meets the standards.

So the Court will hold that

Mr, Simpson, for the purpose

of this litigation, is not

a public figure.”

So that the issue in this case is

squarely met by the majority opinion

and the dissenting opinion, namely,

to what extent does a voluntary involve-

ment of a person in a public controversy

render him a public figure? It is sub- ;

mitted that the majority opinion is an

: improper application of the standards b,

required by Gertz v. Welch, supra to fr

determine whether a petitioner is a public os

or private figure. Simpson's name

appeared in only one newspaper article,

‘Sar ae*) “me be is pe yh ee he. th be ee. 2 ee ae , . et

he obtained signatures on petitions totaling

less than five (5%) percent of the total

signatures obtained, and the fact that he

was listed on each petition as a member

of the committee of petitioners was only

because it was a statutory requirement. —

It is difficult to believe that he has thrust

himself "to the forefront of the controversy”.

It should be realized that this case is

unique because it was during the trial that

the defendants submitted its proof concern-

ing the question of the public figure status

of both petitioners. The sole proof offered

by the defendant was twenty newspaper

articles from the defendant's newspaper,

thirteen of which dealt with the firehouse

controversy. The defendant introduced no

other witness and relied solely upon the

newspaper articles that the defendant

published. There was no testimcny by any

of the defendants or their witnesses that

Simpson was in fact a leader of the contro-

“ee 83

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on - Fo OE ey ee aa ee th. be er ee De ie. y¥ ahdhids ee

versy or that he had achieved any special

prominence with regard to the controversy.

The danger of the majority opinion

of the New Jersey Supreme Court if allowed

to stand on the issue of public figure was

‘ pointed out in the dissenting opinion of

Justice Schreiber where he stated:

"Two highly motivated senior

citizens are left without redress

for libelous publications holding

them up to contempt and ridicule

in the community in which they

have lived for many years. This

is the result of their sincere

attempt to participate in local

government." ... (App. 30)

"A freely expansive notion of a

public figure in the context of

a case defeats the major under-

ying purpose of the York Times

principle. It will throttle

rather than foster public debate

; and criticism. The chilling

effect on the individual's right

of free speech is real. This

case illustrates what may occur.

After the libelous newspaper

article apueates - Simpson stopped

out

, ie ras at

: sanapeas re

ve Lawrence, too, had thoughts

¥ about his activity, though he

_ - nl

; 5

ibe Sas

decided to continue. Citizen parti-

cipation in local governmental

affairs is to be encouraged, not

; @iscouraged. Broadly constxuing

"public figures” to embrace towns~

people whose only notoriety relates

to debate over a local governmental

controversy of the type exempli-

fied in this case is counterpro-

“ ductive." (App. 54-55)

The dissenting opinion went on to

quate Professor Eldredge in his treaties

of The Law of Defamation (1978) as follows:

(App. 55)

“'Suppose the private citizen

criticizes the Board of Magistrates

and charges corruption in the dis-

positicn of gambling cases in the

city. If there can be unleashed

against him a stream of false

: defamation under the protection

; of New York T , his voice will

é soon be silenced, or made ineffec-

tive. And seeing this result,

' who will dare to speak out again

in the same vein? Unbridled

defamation concerning matters of

' public concern was a tool that

Nazis used in pre-World War II

Ge to des important

men render ess what they

6 said, the men whose messages

d desperately needed to be heeded.'"

@ttisens in evecy museiaiivg tn ee

United States and it is an issue that

_thowld be considered by the Onited staves

POINT II. THE SUPREME COURT SHOULD

GRANT CERTIFICATION ON THE ISSUE OF

THE EXTFNT OF PROOF NECESSARY TO

RAISE A JURY QUESTION ON ACTUAL

MALICE FOR A PUBLIC FIGURE IN A

LIBEL CASE.

The second question for which peti-

tioners are seeking certification assumes

that either Lawrence and Simpson or both

are public fiqures. What constitutes

actual malice bothered the trial court.

The trial court originally found, after

declaring Lawrence a public figure, that

no actual malice was shown. However,

after a motion was made by Lawrence, the

court reversed itself and granted Lawrence

a new trial for the reason that, as stated

by the trial court, "I think there is

evidence that Mr. Bauer actually knew the

charges were not true when the articles

were printed."

The New Jersey Supreme Court,ruling

that there was no actual malice shown, did

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not analyze the evidence, but merely stated

the following (App. 32-33).

“Here, defendants honestly believed

that the concededly misleading

statements published in the two

articles were true. Their miscon-

cepts arose primarily from their

conversations with Hartnett in

which he told them that the peti-

tions were under investigation for

possible evidence of false swearing

and forgery. Having been informed

by Hartnett that petitions witnessed

by both Lawrence and Simpson were

among those being examined, defend-

ants thought it was a reasonably

certain implication that any such

investigation would center around

the activities of Lawrence and

Simpson, who were known by the news-

paper to be the key figures in cir-

culating and filing the petitions.”

The court went on to say that the post

trial argument of Lawrence was merely that the

information that the Defendant received from

the source, Hartnett, and City Prosecutor

Romankow was that “they should have known

that the articles were false; or they

at least should have doubted their accuracy”

(App. 33). The court concluded that

the evidence was “constitutionally

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insufficient” to present a jury question

of actual malice (App. 36). m4

The dissenting opinion, in sharp 3

contrast to the majority opinion, found

there was proof of actual malice suffi-

cent to go to the jury in the following

language:

"Factual determinations had to

be made in this case in order

to ascertain the circumstances

under which the publisher acted.

There was a conflict in the

testimony. The majority opinion

accepts Bauer's version of the

information related to him by

Hartnett. However, Hartnett

testified that he had at no

time stated or intimated that

Lawrence had forged any

signatures on or falsely sworn

to the propriety of the sicna-

tures on the petitions. At trial

Hartnett went to great pains to

Clarify his conversations wit

the publisher. He maintained

repeatedly that he had never

linked either Lawrence or

Simpson with the forgeries. In

fact, he denied ever linking

Lawrence to the charge of false

PS swearing. If Hartnett is believed,

te then Bauer, who asserted Hartnett a!

PA was the source of the newspaper's . “e

Ma information, had no basis for |

Be. implying that Lawrence had been

Fee

guilty of forgery or false

swearing in connection with the

petitions. Despite this, Bauer

printed the defamatory material

relating Lawrence to an alleged

forgery. It is questionable

whether Bauer acted in good faith

under these circumstances. Publ? -

cation could certainly be held

by a jury to fall within the scope

of a reckless disregard for the

truth. The trial court acknowledged

as much when it granted Lawrence a

new trial.” (App. 66)

The majority decision relied heavily

in its decision on the statemer.t in the case

of St. Amant v. Thompson, 390 U.S. 727, 20

L.Ed.2d 262 (1968) to the effect that “there

must be sufficient evidence to permit the

conclusion that the Defendant in fact enter-

tained serious doubts as to the truth of his

publication." (App. 34)

The petitioners recognize that the

proof of actual malice calls the defendant's

state of mind into question, (Hutchinson v.

Proxmire, supra Ft. 9). However, in St.

Amant v. Thompson, supra, the United States

Supreme Court also stated that “the

defendant in a ia aa 6 action brought

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by a public official, cannot, however,

automatically insure a favorable verdict

by testifying that he published in the

belief that the statements were true. The

finder of fact must determine whether the

publication was indeed made in good faith."

The fact situation of the St. Amant v.

Thompson, supra is in sharp contrast to the

fact situation present in our cage. In

St. Amant, supra, Mr. St. Amant made a

statement concerning the criminal conduct

of Mr. Thompson, relying on a story he was

told by an informant by the name of Albion.

Thompson tried to show actual malice by

showing that St. Amant failed to verify the

information given him by Albion. The United

States Supreme Court held that this was not

sufficient evidence to prove actual malice.

In our case the situation is entirely

different because the informant testified

that for both the January 9th and April 17th

article that he never told the defendant

that Lawrence and Simpson were under investi- ~-

gation for forgery or false swearing.

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This would appear to raise a question not

present in the 5t. Amant v. Thompson, supra

as to whether the publication was made in

good faith.

Despite the statement made by the New

Jersey Supreme Court, the issue is clearly

not one of whether the defendant should

have known or at least doubted the accuracy

of the information given; rather the issue

is insofar as the January 9th article is

concerned, whether the defendant or his

informant is to be believed as to the.

knowledge that the defendant had concern-

ing the allegations made by the newspaper

against Lawrence and Simpson concerning

forgery and false swearing. This, the Supreme

Court indicated in the St. Amant v. Thompson,

supra case, was something for the trier of

fact to determine.

We also call the court's attention to

Hutchinson v. Proxmire, supra. In this case,

the District Court said that in determining

, a he : a - : Lt pr. a a oe F

tt: & 2 hae ry er y. + a Sue a rt, ONS SR ee errs e.

F pei A

whether a plaintiff had made an adequate

showing of "actual malice,” summary

judgment may well be the rule rather than

the exception. The Supreme Court stated:

"Considering the nuance of the

issues raised here, we are

constrained to express some

doubt about the so-called ‘rule.’

The proof of ‘actual malice' calls

a defendant's state of mind into

question. New York Times Co. v.

Sutivan.

ces not readily lend itself

on summary disposition.”

While this matter came before the court,

not on a motion for summary judgment but at

the end of the plaintiff's case, the effect is

the same and the New Jersey Supreme Court has

by its decision abrogated the right of the

finder of fact to make the determination.

With regard to the April 17th article

the issue of actual malice is raised in a

different fashion. In this instance the

petitioner had demanded a retraction and

the defendant, instead of ignoring the

demand, chose to reply to the retraction —

demand in an article on the front page of

a Oe Tt ee ae ae “ Le fe ee ee - oh — a oe A. oe

se i ey gee 1a “4 co | act eS) ‘ 3

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of his newspaper. Even the defendant now

concedes that the April 17th article was

not a retraction and the majority deci-

sion of the New Jersey Supreme Court also

; found that it was not a retraction (App. 6).

The uncontested testimony was that

Bauer gave Hartnett a draft of his April

17th article in which he again repeated the

allegations of criminal sonduct on the part

of Lawrence and Simpson. Hartnett testified

that he again told Bauer that he was in-

correct in reporting that Lawrence and

Simpson were involved in criminal conduct.

Hartnett's statement at his deposition

(which at the trial he conceded was

accurate) concerning the four-way telephone

call and the draft of the April 17th article

was as follows:

"I don't know that I can recall

exactly specific statements in

terms of words I objected to,

but I can certainly give you

the gist of what I corrected.

° The draft copy which Mr. Baver

b) showed to me, he made attri-

“ bution for statements aviay

9 allegations of forgery

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PT ECR COPE Po OMS a fe” ren Caan

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Sins I OO

I indicated to hir that that was

not correct; that at no time I

had made such statement to him.”

As a result, Bauer redrafted the April 17th

article in the form in which it was

published (App. 106). He attempted to

protect himself by having Prosecutor Roman-

kow write a letter which we have quoted

at p. 20 of this petition. Romankow

admitted that this letter was not intended

to accuse Lawrence and Simpson of forgery

or false swearing and when he was asked,

"You were not trying to imply in any fashion

that Mr. Simpson and Mr. Lawrence were under

investigation for forgery, were you?", he

answered “no”.

Bauer used the Prosecutor's letter to

justify the statement in the April 17th

article that Lawrence and Simpson “are

associated with the petitions and the peti-

tions are in fact *he subject of an investi-

gation for allegations of forgery and false

swearing Of oaths.” (App. 106)

-~ 46 -

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It would take a very sophisticated

reader to realize that Bauer had retreated

from his direct allegation of criminal

conduct on the part of Lawrence and

Simpson in the January article to merely

stating that the petitions were under

investigation and that Lawrence and Simp-

son were not involved in any wrongdoing

in connection with the petitions.

Bauer, incidentally, would never

confirm or deny what Hartnett told him.

For example, he was asked on cross examina-

tion: |

"Did he (Hartnett) ever tell you

that Mr. Lawrence and Mr. Simpson,

personally, were investigated by

him for possible forgery of the

petition of signatures on the

petition?"

His answer was, “What is in the letter, sir?"

referring to the letter that Romankow had

written.

It would appear that the April article

also raises a question concerning whether

"ae ,

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or not there was actual malice on Bauer's

part. There was no question that in April,

Bauer knew that he could not claim as he

said in the January article, that Lawrence

and Simpson were involved in criminal

charges, but Bauer could not bring himself

to print in the April article the one fact

that Hartnett had made clear to him: namely,

that Lawrence and Simpson were not linked

to forcery or false swearing charges. Even

if it is assumed that Bauer misunderstood

what Hartnett told him about Lawrence and

Simpson before he published the January

article (something that is doubtful

considering Hartnett'’s testimony), there

can be no question that Baver understood

what Hartnett told him in April because Bauer

redrafted his article after Hartnett had

again told him that he had never linked

Lawrence and Simpson to any forger or false

swearing charges. This was uncontested

by Bauer. The result is that Bauer knew

rea in at es"

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aw PS A ae a ity ge ces Se kt hog Ms Se

that his article of January 9th concerning

Lawrence and Simpson was false when he

printed the April 17th article, but he still

persisted in attempting to give the impression

that Lawrence and Simpson had some connec-

tion with criminal conduct. It should be

noted that the New Jersey Supreme Court found,

as a matter of law, that both the January

article and the April article were defamatory

(App. 36).

We believe that the evidence presented

concerning the publication of the two

articles falls into the class of statement

discussed in Garrison v. Louisiana, 379 U.S.

64, 13 L.£d.2d 125, 85 §.Ct. 209 to the

effect that:

“Calculated falsehood falls

into that class of utterance

which, ‘are no essential part

of any exposition of ideas,

and are of such slight social

value as a step to truth that

any benefit that may be

derived from them is clearly

outweighed by the social

interest in order and morality.'”

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In any event, this is not a situation

kK as found by the New Jersey Supreme Court

: where the issue was whether or not the

defendant “should have known that the

article was false." As the dissenting

; . Opinion stated, “He (Hartnett) maintained

repeatedly that he had never linked either

ees ie * sh”

Lawrence or Simpson with the forgeries"

(App. 66). So this is not a St. Amant v.

Thompson, supra situation where there was

no evidence to indicate that the infor-

mant's information was untrue. Here, the

j informant himself testified that he told

the defendant that what he published was

untrue,

All this decision points out is

the fact that the New Jersey Supreme Court

has taken a rather limited view of what

evidence should be considered in deciding

whether there was actual malice and how that ,

| “evidence should be interpreted. 3

poy ‘The opir ton of the New Jersey Suprene

P Court, instead of examining the evidence — ct. 1

. SY to see whether or not there is eubetantiay oa

I | evidence to send the matter to the jury "all

rs on the question of actual malice, has |

examined the evidence as a finder of fact J

and determined the publisher only mis- a

interpreted what was told him by the ee

informant. This, we submit, is not non ae

the United States Supreme Court intended _ ace

when it required a finding of actual ee

») eee

owe, te

” ,

in St. Amant v. Thompson, supra. The hy.

Supreme Court stated that it is the finder

of fact who must determine whether the rw

publication was made in good faith.

However, the New Jersey Supreme Court, and

M the contrasting dissenting opinion, has. Fe

brought iato sharp focus the standard of i

evidence necessary to prove actual malice, -

B and the question of who should have, sm a

on thi

4 4

ig :

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» °

request

submitted that ‘Agi for writ of

certiorari be granted. |

July, 1982

. &s

: 4

, e

Freehold, New Jersey ae 2

201-431-0300 om o

Attorney for Petitioners i.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.