Petition for Writ of Certiorari — Scripps-Howard Broadcasting Co. v. Barber

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Office-Supreme Court. US.

84-86 FILED

JUL 17 1984

ALEXA NDER § STEVAS,

A RK

Ne.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

SCRIPPS-HOWARD BROADCASTING COMPANY,

ERIc BRAUN, and LARRY SCHOCK,

Petitioners,

LESTER J. BARBER and JANET E. BARBER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Bruce W. SANFORD

Counsel of Record

Louis A. COLOMBO

LEE LEVINE

BRIAN S. HARVEY

BAKER & HOSTETLER

818 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 861-1500

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED FOR REVIEW

Whether the Constitution requires that this Court un-

dertake an independent review of the record and rein-

state summary judgment in a defamation action when the

plaintiffs, both “public officials,” have failed to produce

any evidence that the news report at issue was published

with “actual malice.”*

“The majority of the shares of petitioner Scripps-Howard

Broadcasting Company is owned by The E. W. Scripps Company, a

privately held corporation. Scripps-Howard Broadcasting Company

has an approximate 50 percent participation in four partnerships:

Cablevision of Connecticut, Ann Arbor Cablevision, Cablevision

Systems of Southern Connecticut, and Cablevision of Sacramento.

ii.

naw $00

TABLE OF CONTENTS

Page

QUESTION PRESENTED FoR REVIEW .....--- 0505555055 i

DURMEDOCTION 5... con nos sccaesteusneesth be 4 uae SAGunes l

CONSTITUTIONAL PROVISIONS INVOLVED .......0 0000055 l

STATEMENT OF THE CASE 2.0... cece eee cece cess eeeees l

A. Preliminary Statement ............5505 5555 l

B. Procedural History ............5 eee ewes 5

C. How Federal Question Is Presented ........ 6

D. Statement OF Facte 0.0.0.5 cess ccesecunse 7

Ressons FoR GRANTING THE WRIT ........0 0000 eee 15

An Independent Review Of The Record Demon-

strates That The Ohio Court Of Appeals Has Failed

To Require That The C cnatiunionsl Facts Requisite

To The Imposition Of Defamation Liability Be Es-

tablished With Convincing Clarity ...........+-- 15

A. Appellate Courts, Including The —,

pcan anne asain

Courts of Ohio, Have A Constitutional Obliga-

tion To Undertake An Independent Review Of

The Record In Defamation Actions Instituted

By Public Officials ............-- esse eee eee 15 |

B. Independent Review Of The Record Demon-

strates That The News Report At Issue

Accurately Reported Law Enforcement Activ-

ity And Was Not Broadcast With Knowledge of

Falsity Or Serious Doubt As To Its Truth .. 1

COMCLUSION 5 ..c0cccaccccasuesvusseeneh eee eeaas 26 |

BOPEMDICES 2. ccc ccsviesbace se esaceauean eee eeees la

iii

TABLE OF AUTHORITIES

CASES: Page

Bose Corp. v. Consumers Union, 52 U.S.L.W.

4513 (U.S. April 30, 1984) (No. 82-1246) ... 3, passim

Embers Supper Club, Inc. v. Scripps-Howard Broad-

casting Co., 9 Ohio St. 3d 22, 457 N.E. 2d 1164, cert.

denied, 52 U.S.L.W. 3814 (U.S. June 4, 1984) (No.

a ee ern

Garrison v. Louisiana, 379 U.S. 64 (1964) ........... 17

Gertz v. Robert Welch, Inc., 418 U.S. 323

NN Oe 16, 26

Greenbelt Cooperative Publishing Association v. Bres-

ler, 398 U.S. 6 (1970) .......... ee ere bk: 2 22

Lambert v. Providence Journal Co., 508 F.2d 656 (1st

Cir.), cert. denied, 423 U.S. 828 (1975) .......... 23

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

SE ah SRA RR ea 15, passim

Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir. 1978),

cert. denied, 440 U.S. 960 (1979) ................ 22

Rosenblatt v. Baer, 383 U.S. 75 (1966) .............. 16

St. Amant v. Thompson, 390 U.S. 727 (1968) ...... 16, 21

Seymour v. A. S. Abell Co., 557 F. Supp. 951 (D. Md.

ae an choc ak uh s ¥< cn cc eknce. 23

Simonson v. United Press International, Inc., 654 F.2d

ee 23

Williams v. WCAU-TV, 555 F. Supp. 198(E.D. Pa. 1983) 28

OTHER AUTHORITIES:

ein cnc ucecuaas 5

Ts hk an bad seach cssuatdsecarctnan, 5

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1984

eee

Scripps-HOWARD BROADCASTING COMPANY,

Eric BRAUN, and LARRY SCHOCK,

Petitioners,

LESTER J. BARBER and JANET E. BARBER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Petitioners, Scripps-Howard Broadcasting Company,

Eric Braun, and Larry Schock, respectfully pray that a

writ of certiorari issue to review the judgment and order

of the Supreme Court of Ohio entered in this defamation

action on April 18, 1984.

OPINIONS BELOW

The opinion of the Court of Common Pleas for Stark

County, Ohio, the opinion of the Court of Appeals for

Stark County, Ohio, and the order of the Ohio Supreme

Court are all unpublished and are all included in the

Appendix hereto.

JURISDICTION

The judgment of the Ohio Supreme Court, declining to

review the reversal by the court of appeals-of the trial

court’s entry of summary judgment for petitioners, was

entered on April 18, 1984. This petition for certiorari is

filed within 90 days of that date. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

1. First Amendment, United States Constitution:

San. cy shall make no law . . . abridging the

freedom of speech, or of the press... .

9 Fourteenth Amendment, Section 1, United

States Constitution:

[NJor shall any state deprive any person of life,

ore or property, without due process of

STATEMENT OF THE CASE

A. Preliminary Statement

On February 10, 1982, petitioner Scripps-Howard

Broadcasting Company, which owns and operates televi-

sion station WEWS in Cleveland, Ohio (“the Station”),

broadcast a news report stating accurately that sheriff's

deputies had seized a motorboat during a search av the

home of the Fire Chief of Lexington Township, Ohio, and

that police officials planned to seek indictment of the

Chief in connection with his possession of the boat. At the

time of the search, the boat—which had been reported

stolen—was obscured from view behind a garage in the

Chief’s back yard by a truck camper top, tarpaulins, and

plywood.

Despite ample discovery by all parties, the record is

wholly devoid of evidence that this news report was

broadcast with “actual malice,” i.e., knowledge of falsity

or a high degree of awareness of probable falsity, or that

it is not substantially accurate. Accordingly, the trial

court granted summary judgment-for the Station and

ponid camatr- ne

i aes

dismissed the Complaint. The Court of Appeals for Stark

County, Ohio, however, chose to ignore this basic

evidentiary failure and reversed the trial court’s decision.

In its haste to remand for further proceedings, the court

of appeals created from whole cloth evidence which, as

the record readily reveals, simply does not exist. Then, in

plain derogation of the constitutional obligation of appel-

late courts to undertake an independent review of the

record in defamation cases, see Bose Corp. v. Consumers

Union, 52 U.S.L.W. 4513 (U.S. April 30, 1984) (No.

82-1246), the Ohio Supreme Court summarily declined te

review the instant case on the ground that “no substantial

constitutional issue exists.” Appendix to Petition for Cer-

tiorari at la [hereinafter cited as App.].

The news report at issue accurately informed the public

about an official search and seizure undertaken by local

police authorities, pursuant to a lawfully issued judicial

warrant. It accurately recounted allegations of criminal

wrongdoing which police had leveled against a public

official, and which constituted probable cause for the

search. The record in the instant case—fully developed

by numerous depositions—docum ents in detail these offi-

cial actions and charges by police. The record demon-

strates that the Station did no more than report accurate-

ly to the public the daily workings of the criminal justice

system in Stark County, Ohio, a matter of obvious con-

cern to that community.

By reversing the summary judgment granted to the

Station, the Ohio appellate courts once again have ren-

dered it virtually impossible for television stations in Ohio

accurately to report on law enforcement activity without

facing the specter of debilitating defamation liability.’ By

'In Embers Supper Club, Inc. v. Scripps-Howard Broadcasting

Co., 9 Ohio St.3d 22, 457 N.E.2d 1164, cert. denied, 52 U.S.L.W.

3874 (U.S. June 4, 1984) (No. 83-1653), the Ohio Supreme Court

sanctioning the court of appeals’ abandonment of the

record before it, the Ohio Supreme Court has made clear

that Ohio television stations now risk interminable litiga-

tion in all defamation suits based on news reports of police

action, however accurate the report and diligent the re-

porters. Such an approach can serve only to punish news

organizations for performing their proper role or, worse,

*o dissuade them from informing the public about the

vases for police searches, arrests, and other official ac-

tions premised von a prior showing of probable cause.

Clearly, the prospect of such self-censorship cannot au-

gur well for either the deterrence of crime or the compre-

hensibility of a society ordered by law.

Because the decision below rests upon a gross

misapplication of elementary principles of the con-

stitutional law of defamation, the Station prays that its

petition for certiorari be granted. Indeed, the remarkable

disregard of the record displayed by both Ohio appellate

reversed a directed verdict that had been granted to an Ohio televi-

sion station in a defamation action that was premised upon accurate

reports of a police raid and the probable cause for the raid. Despite

the failure of the plaintiff in E»ebers to demonstrate at trial that the

news reports at issue there were inaccurate, or that the television

station had been at fault in any sense, the Ohio Supreme Court

remanded for a second trial. Together with Embers, the instant case

reveals the resolve of the Ohio appellate courts to penalize Ohio news

organizations at every opportunity in the most frivolous of defama-

tion suits. By repeatedly refusing to dispose of clearly meritless libel

claims short of a lengthy and expensive trial, or, as in Embers, two

trials, the Ohio appellate courts’ approach can, in the long run, only

serve to deprive the public of valuable information about the activi-

ties of law enforcement agencies and the commission of crime in their

communities.

courts warrants this Court’s summary reversal of the

decision below, pursuant to 8S. Ct. R. 23.1.

B. Procedural History

On February 10, 1982, Detective William L. Johnson of

the Stark County, Ohio Sheriff's Office obtained a judicial

warrant to conduct a search for a stolen motorboat at the

home of respondent, Lexington Township Fire Chief Les-

ter J. Barber. That same day, Detective Johnson and two

deputies conducted the search and confiscated the motor-

boat from Chief Barber. On July 29, 1982, Chief Barber

and his wife, respondent Janet E. Barber, the elected

Clerk of Lexington Township, instituted this action in the

Court of Common Pleas for Stark County, Ohio against

Detective Johnson; Robert Berens, Sheriff of Stark

County; Stark County itself; Stark County’s three Coun-

ty Commissioners; the Station; Larry Schock, a profes-

sional broadcast journalist who works as a “stringer” for

the Station; and Eric Braun, the Station's news director.

Chief and Mrs. Barber asserted an array of allegations,

including conspiracy, trespass, defamation, and invasion

of privacy.

After all parties were afforded ample opportunity for

discovery, the Station moved for summary judgment on

the ground, inter alia, that both plaintiffs are “public

officials” and, as such, had not and could not sustain their

burden of demonstrating that the news rej ort at issue

was broadcast with “actual malice” as that term has been

definec by this Court. Based upon the record evidence,

? Simultaneously with the filing of this petition, the Station is

requesting the clerk of the court possessed of the record to certify the

record and provide for its transmission to this Court, pursuant to 3S.

Ct. R. 19.1, in order to expedite this Court’s independent review of

the record. See Bose Corp. v. Consumers Union, 52 U.S.L.W. 4518

(U.S. April 30, 1984) (No. 82-1246).

which consisted of affidavits and several depositions, the

trial court ruled that the news report at issue is

“essentially true.” App. 18a. In addition, the court de-

clared that both Chief and Mrs. Barber are “clearly public

officials” and concluded that since the news report at

issue contains “no factual inaccuracy,” they had not satis-

fied their burden to demonstrate “actual malice.” App.

19a. Accordingly, the trial court granted the Station’s

motion for summary judgment. App. 20a.*

On December 29, 1983, a three-judge panel of the Court

of Appeals of Stark County, Ohio reversed the summary

judgment. App. 2a, 16a. On April 18, 1984, the Ohio

Supreme Court denied review of that decision. App. 1a,

21a.

C. How Federal Question Is Presented

The federal constitutional requirement that, in a

defamation action instituted by a public official, the plain-

tiff must demonstrate that a news report was published

with “actual malice” was presented to the trial court upon

the Station’s motion for summary judgment. The Station

continued to advance this federal constitutional require-

ment in the court of appeals and in the state supreme

court. In the Ohio Supreme Court, the Station advanced

the federal constitutional requirement that an appellate

court in a defamation action must undertake an indepen-

dent review of the entire record to ensure that the judg-

ment below does not constitute an infringement of First

Amendment rights.

* The trial court also dismissed the Barbers’ allegations of trespass,

invasion of privacy, and conspiracy, and granted motions to dismiss

filed by the Stark County defendants. The Barbers failed to appeal

from the trial court’s rulings with respect to these issues, and they

are not before this Court.

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D. Statement Of Facts

The Plaintiffs

Respondent Lester J. Barber has been Fire Chief for

Lexington Township, Ohio since 1967, when the

Township Board of Trustees appointed him to that posi-

tion. Deposition of Lester Barber at 6 [hereinafter cited

as L. Barber Dep.]. Respondent Janet E. Barber, his

wife, is the elected Clerk of Lexington Township. Deposi-

tion of Janet Barber at 3-4 [hereinafter cited as J. Barber

Dep. ].

Chief Barber’s Retention And Concealment Of The Stolen

Motorboat

In July 1978, Chief Barber “found” a 14-foot Lonestar

runabout motorboat upside down in Berlin Reservoir, a

recreational lake near Akron, Ohio. L. Barber Dep. at 7.

The boat was equipped with a 40-horsepower outboard

motor, and was suitable for water skiing. Deposition of

William Johnson at 49; id., Exh. 2 [hereinafter cited as

Johnson Dep.]. The motorboat, like all Ohio watercraft,

bore a registration number similar to an automobile

license plate, and its true owner-—Mr. Gene Dawson—

could readily have been identified through this number by

telephoning the Ohio Bureau of Watercraft in Columbus,

Ohio. Jd. at 45-47, 76. The boat had been stolen from

Dawson. Id. at 4c, 48.

Chief Barber, however, did not bother to contact either

the Ohio Bureau of Watercraft or Dawson about the

stolen boat. L. Barber Dep. at 12. Although Chief Barber

“asked a number of people” to “run the [boat’s] numbers,”

he never did so himself. Jd. at 8-13. Indeed, these efforts

were limited, so far as Chief Barber knows, to an inquiry

as to whether law enforcement agency computers in-

dicated the boat had actually been reported as stolen or

missing. Jd. at 9, 13.

Instead, Chief Barber and others at the Fire Depart-

ment planned, he claimed, “to make a boat out of it for the

fire department.” Jd. at 15. Thus, Chief Barber placed the

boat upon his own trailer and, for most of the next three

and a half years, kept it behind a garage in his own back

yard. /d. at 13, 15, 26; Johnson Dep. at 19, 74. The boat

was concealed and obscured from view. Jd. at 19, 117.

Plywood had been piled against it and tarpaulins were

draped over it. Affidavit of Larry Schock © 16(h)

{hereinafter cited as Schock Aff.]; Deposition of Larry

Schock at 32 [hereinafter cited as Schock Dep.]. A truck

camper top had also been placed over the boat. Schock

Aff. { 16(h); Schock Dep. at 32.

The Search And Seizure

On or about February 8, 1982, the Stark County Sher-

iffs Office received a report that Chief Barber had been

concealing a stolen motorboat—that it was “covered up”

“behind a garage” in the Chief's own back yard—and that

the boat would soon be taken to a repair shop for repaint-

ing. Johnson Dep. at 19, 74; id., Exh. 1. Thereafter,

Detective William Johnson, a Stark County Sheriff's de-

puty, began an official investigation with respect to crimi-

nal liability arising from Chief Barber’s possession of the

boat. In order to secure a search warrant for Chief Bar-

ber’s premises, on February 10, 1982, Detective Johnson

executed an affidavit in which he swore that az informant

had “personally observed the boat covered by a truck cap

and plywood” at Barber’s home. /d. at 29, 54; id., Exh. 1.

Indeed, Detective Johnson stated, under oath:

I have personally observed the area to be searched

and have confirmed that an object is concealed under

a truck cap and plywood at the side of the garage as

described as the hiding place of the boat by in-

formants.

Id., Exh. 1 (emphasis added). The boat’s registration

inzmbers had been provided to Detective Johnson by the

informants, and Detective Johnson subsequentiy placed a

telephone call to the Ohio Bureau of Watercraft, which

quickly identified Gene Dawson as the boat’s owner. /d.

at 45-46. Detective Johnson then contacted the owner—

“the first logical thing you do” as a public officer when

encountering abandoned property. /d. at 47, 76. Dawson

confirmed to Detective Johnson that he did own the boat

and that it had indeed been stolen. /d. at 48.

Based on Detective Johnson’s affidavit, on February

10, 1982, Judge William A. Morris of the Stark County,

Ohio Court of Common Pleas issued a search warrant,

which states that, at Chief Barber’s address:

There is now being concealed certain property,

namely... . One 1959 Lonestar runabout outboard

motorboat ..., [and a] 40 HP Johnson outboard

motor... whichare. . . evidence of the commission

of acriminal offense, Receiving Stolen Property. . .

and I am satisfied that there is probable cause to

believe that the property so described is being con-

cealed on the premises above described.

Id., Exh. 2 (emphasis added).

Prior to the issuance of the search warrant, the Stark

County Sheriffs Office, on February 9, 1982, had con-,

tacted petitioner Larry Schock, a professional broadcast

journalist who covers news events for the Station in the

Stark County area. Schock Aff. (1; Affidavit of Eric

Braun { 9 [hereinafter cited as Braun Aff.]. The Sheriff's

Office requested Schock to accompany a deputy sheriff as

a statutorily required independent witness in the execu-

tion of the search warrant. Schock Aff. { 8.

At 1:30 p.m. on February 10, 1982, Schock met with

Detective Johnson and was informed by him that the

Sheriff's Office was going to seize what was believed to be

a stolen boat that had been missing for over two years.

Schock Aff. §§ 8, 9. Detective Johnson and two other

uniformed deputies then proceeded to the Barber premis-

es in three police cruisers to perform the search. Johnson

Dep. at 84.‘ Upon his arrival, Detective Johnson ob-

served that the boat “was covered up” and “concealed

from view.” Jd. at 19, 117. As Detective Johnson stated in

his official Report of Investigation: “It was nearly im-

possible at first glance to determine whether there was a

boat concealed or not.” Jd., Exh. 4. Schock, who had

driven in his own car, videotaped the search and the

seizure of the boat. He also observed that the boat “was

obscured by a camper top that was on it.” Schock Aff.

" 16(h). According to Schock, the boat was covered with

tarpaulins; plywood and other materials were piled on or

against it. Schock Aff. © 16; Schock Dep. at 32. Over the

course of 30 to 45 minutes, the deputies uncovered the

boat. Schock Dep. at 32. Detective Johnson and the other

deputies “turned my garage upside down,” in Chief Bar-

ber’s words, in order to locate an outboard motor, life

jackets, a fire extinguisher, and other items of equipment

listed in the warrant as being in the Chief's possession. L.

Barber Dep. at 34. The deputies then removed the stolen

boat from Chief Barber’s property. Jd.

At the time of the search, Detective Johnson told

Schock that he was going to take the evidence seized at

Chief Barber’s residence to the grand jury, and that the

grana jury might indict the Chief as a result. Johnson

Dep. at 110-11, 116; Schock Aff. © 14. Detective Johnson’s

search warrant, which Schock also reviewed, makes clear

that the boat was to be seized for use as “evidence of the

commission of a criminal offense, Receiving Stolen Prop-

erty.” Johnson Dep., Exh. 2; Schock Dep. at 36-37.

‘Chief Barber, whose Complaint in the instant case characterizes

the search as “a raid,” stated on deposition that “eight cruisers” were

involved. L. Barber Dep. at 30.

During the search, Schock spoke with Chief Barber.

Schock Aff. § 11. The Chief advised Schock of his alleged

efforts to determine whether the boat had been reported

as stolen, and claimed he had been unable to ascertain its

ownership. Jd. § 13.° Lexington Township Police Chief

Paul Kelley also claimed he had been unable to learn the

owner’s identity. Jd. § 16(d). Schock, however, also dis-

cussed the boat’s ownership with Detective Johnson, who

said he had simply telephoned the Ohio Bureau of Water-

craft in Columbus, Ohio with the boat’s registration num-

ber, and that the owner was thereby identified in less

than ten minutes. Jd. {§ 13, 16(e); Johnson Dep. at 46.

The News Report At Issue

Following the search, Schock went to the Sheriff's

Office and obtained additional facts necessary to prepare

a news report concerning events at the Fire Chief's home.

Schock Dep. at 33. He then transmitted the videotape to

the Station in Cleveland from its transmission facility in

Akron, Ohio, and telephoned the facts he had compiled to

the Station. Jd. at 48-50.

Among the facts Schock reported were the following:

That on February 10, 1982, Stark County deputy sheriffs

had descended unannounced on the home of Fire Chief

Lester J. Barber to serve a search warrant for a boat that

had been reported as stolen; that the Sheriffs Office in

fact found and seized a motorboat that had been recov-

ered from the Berlin Reservoir about two and a half years

previously; that Fire Chief Barber and Police Chief Paul

Kelley, both of whom were present when the boat was

5 Although Chief Barber told Schock that the boat’s registration

numbers had been “referred” to the Ohio Bureau of Watercraft,

Chief Barber later admitted, under oath, that he had not contacted

the Bureau himself and that, so far as he knew, neither had anyone

else. L. Barber Dep. at 12-13.

recovered, claimed they had been unable to find the boat’s

owner; that the Sheriffs Office, however, had found the

owner in a matter of minutes by checking the registration

number; that the boat was found in Fire Chief Barher’s

back yard obscured by a camper top that was on it and

tarpaulins and plywood piled on or against it; that either

Fire Chief Barber or Police Chief Kelley had been in

possession, custody, and control of the boat at all times

following its recovery from the Berlin Reservoir; that

Detective Johnson planned to present his evidence to the

grand jury and to seek indictments against those involved

in the incident; and that there was a possibility that both

Chief Barber and Police Chief Kelley would be indicted

for their roles in the matter since each had been present

when the boat was retrieved, each claimed to have at-

tempted to find the owner, and neither had located the

owner. Schock Aff. { 16. When he reported the foregoing

facts, Schock was convinced that they were accurate in

every respect. Jd. { 17.

In its evening news program on February 10, 1984, the

Station broadcast a news report, accompanied by video-

tape, about the service of the warrant and the search for

the boat. Braun Aff. { 12. The text of the news report at

issue states:

[Introduction at beginning of news program:] A

—s and fire chief in Stark County appear to be in

ots of hot water. The exclusive details, next.

Both the police and fire chiefs in Lexington Townshi

may soon be indicted. Today Stark County Sheriff

[sic] deputies swooped down on the home of Fire

Chief Lester Barber. They found a small motorboat

recovered from Berlin reservoir 2-1/2 years ago. The

Chief, and Police Chief Paul Kelley claim they

couldn’t find the boats [sic] owner. But using the

boat’s registration number police found the owner

just like that. [Detective Johnson speaking on tape:]

‘It took approximately five to eight minutes to deter-

mine the proper owner of the boat through... a

telephone call to the Bureau of Watercraft, Colum-

bus, Ohio.’ Johnson will present his evidence to the

grand jury, and ask indictments against both the

police and fire chief for hiding the boat.

Id. 4 12.

The Decisions Below

Based on the foregoing undisputed facts, the trial court

granted the Station’s motion for summary judgment. The

trial court ruled that both plaintiffs are public officials and

are therefore required to prove “actual malice,” that the

plaintiffs had failed to satisfy this burden, and that the

“sist or sting” of the news report at issue is true. App.

17a-20a. The court of appeals reversed. It agreed that

both plaintiffs are public officials, but concluded that

factual issues exist as to whether the news report at issue

was broadcast with “aciual malice.” App. 4a-16a.

The court of appeals’ opinion seriously and dis-

ingenuously misrepresents the record. By ignoring un-

controverted evidence that the boat was “covered up”

with a camper top, tarpaulins, and plywood, and that the

search warrant itself had been issued for seizure of a boat

“eoncealed” in a “hiding” place on the Chief's premises,

Johnson Dep. at 75, 117; id., Exh. 1; id., Exh. 2; Schock

Dep. at 32; Schock Aff. 16(h), the appellate court fabri-

cated a factual issue as to “whether the boat was hidden,”

App. 10a. Then, in order to concoct a factual issue as to

“actual malice,” the court of appeals actually rewrote the

news report at issue, and changed the Station’s statement

that Fire Chief Barber and Police Chief Kelley “may soon

be indicted” to a statement that Chief Barber and Police

Chief Kelley “were ‘soon to be indicted.’ ” App. 13a. Fur-

ther, despite Detective Johnson’s statements to Schock

(a) that he would seek an indictment, (b) that Chief Bar-

ber could be one of the individuals indicted, and (c) that

any charges would be based on the Chief's retention and

concealment of the stolen boat, Johnson Dep. at 110-11,

117; id., Exh. 2; Schock Aff. { 16, the court of appeals

concluded that “{rjeasonable minds could find . . . that

the assertion that Fire Chief Barber and Police Chief

Kelley were ‘soon to be indicted’ for ‘hiding the boat’. . .

was made with the knowledge it was false or with a

reckless disregard of whether it was true or false,” App.

13a."

The court of appeals conjured up another factual issue

as to whether Chief Barber had intended to conceal the

boat and deemed this purported dispute material be-

cause, in the court’s view, Chief Barber’s “state of mind”

about the boat somehow is relevant to the determination

of whether the Station knew the news report “is false” or

“entertained serious doubt” as to its truth. App. 13a-1da.

This conclusion, in turn, is premised upon another gross

‘The appellate court reached this remarkable conclusion despite

Detective Johnson’s uncontroverted testimony at deposition:

Q. Did you tell Larry Schock you were going to take your case

to the Grand Jury?

A. Yes.

Q. Did you tell him they may or may not indict either of these

individuals named in this story? ... Did you make that

statement with respect to the fire chief?

[objections noted]

A. Yes.

Q. Was ... the boat concealed from view when you arrived

on February 10, 1982?

A. Yes.

Johnson Dep. at 110-11, 117. Incredibly, the appellate court con-

cluded: “Johnson did not tell Schock that appellant Barber ‘may soon

be indicted.’” App. 12a.

mischaracterization of the news report at issue. The court

of appeals viewed the news report as charging that Chief

Barber was, in fact, guilty of violating the se<cion of the

Ohio Criminal Code which defines the of%cuse of receiving

stolen property and then, looking to the definition and

technical elements of the crime, found factual disputes

with regard to the Chief's culpability under this statute—

none of which bear the slightest relation to the news

report at issue. App. l4a-1lda.

In a one-sentence order, the Ohio Supreme Court de-

clined to review the court of appeals’ decision. App. 21a.

REASONS FOR GRANTING THE WRIT

An Independent Review Of The Record Demonstrates That

The Ohio Court Of Appeals Has Failed To Require That The

Constitutional Facts Requisite To The Imposition Of

Defamation Liability Be Established With Convincing

Clarity.

A. Appellate Courts, Including The Appellate Courts Of

Ohio, Have A Constitutional Obligation To Undertake An

Independent Review Of The Record In Defamation Ac-

tions Instituted By Public Officials.

The decision of this Court in Bose Corp. v. Consumers

Union, 52 U.S.L.W. 4513 (U.S. April 30, 1984) (No.

82-1246), makes clear that al/ appellate courts, including

the appellate courts of Ohio, are obliged under the First

and Fourteenth Amendments in defamation actions in-

stituted by public officials to undertake an “ ‘independent

examination of the whole record,’ in order to make sure

‘that the judgment does not constitute a forbidden in-

trusion on the field of free expression.’” Jd. at 4517

(quoting New York Times Co. v. Sullivan, 376 U.S. 254,

284-86 (1964)). The requirement of independent appellate

review “reflects a deeply held conviction that judges—

and particularly members of this Court—must exercise

such review in order to preserve the precious liberties

established and ordained by the Constitution.” /d. at 4520

(emphasis added). Indeed, “judicial evaluation of special

facts that have been deemed to have constitutional sig-

nificance,” id., is crucial in order to ensure that finders of

fact—including judges of lower courts—will not purport

to impose defamation liability in derogation of the First

Amendment rights articulated in New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), and its progeny.

Bose setties, once and for all, that in defamation actions

instituted by public officials the plaintiff must produce

evidence that establishes, with convincing clarity, that

the defendants published defamatory falsehood with at

least a reckless disregard of its truth or falsity. Thus, in

order to justify a trial upon his claims, the plaintiff must

produce facts which demonstrate that the allegedly

defamatory statement at issue is not substantially accu-

rate, New York Times Co. v. Sullivan, 376 U.S. at 279;

Gertz v. Robert Welch, Inc., 418 U.S. 328, 340-41 (1974),

and that it was published with “actual malice,” New York

Times Co. v. Sullivan, 376 U.S. at 279-80, 286, as defined

in St. Amant v. Thompson, 390 U.S. 727. 731 (1968):

There must be sufficient evidence to permit the con-

clusion that the defendant in fact entertained serious

doubts as to the truth of his publication.

This Court’s decision in Bose makes clear that these facts

are of “constitutional significance”; no judgment of

defamation liability can stand, consistent with the First

Amendment, in their absence.

It cannot seriously be disputed that the plaintiffs in the

instant case—a Fire Chief and an elected Township

Clerk—are both “public officials” within the meaning of

this Court’s decisions, e.g., Rosenblatt v. Baer, 383 U.S.

75, 87 (1966), as the courts below correctly held. As such,

both plaintiffs are subject to “[t]he federal rule that pro-

hibits a public official from recovering damages for a

defamatory falsehood unless he proves that the false

‘statement was made with “actual malice”—that is, with

knowledge that it was false or with reckless disregard of

whether it was false or not.’” Bose Corp. v. Consumers

Union, 52 U.S.L.W. at 4518 (quoting New York Times

Co. v. Sullivan, 376 U.S. at 279-80). As this Court ex-

plained in Bose:

The burden of proving ‘actual malice’ requires the

plaintiff to demonstrate with clear and convincing

evidence that the defendant realized that his state-

ment was false or that he subjectively entertained

serious doubt as to the truth of the statement.

52 U.S.L.W. at 4520 n.30; accord, Garrison v.

Louisiana, 379 U.S. 64, 74 (1964) (“actual malice” stand-

ard requires proof of “high degree of awareness of. . .

probable falsity”).

Moreover, as a matter of federal constitutional law, it is

incumbent upon appellate judges to exercise independent

appellate review in defamation cases to ensure that the

record contains the requisite evidence, demonstrating

actual malice with “convincing clarity.” As the Court

declared in Bose:

The question whether the evidence in the record ina

defamation case is of the convincing clarity required

to strip the utterance of First Amendment protec-

tion is not merely a question for the trier of fact.

Judges, as expositors of the Constitution, must in-

pep pro ecide whether the evidence in the rec-

ord is sufficient to cross the constitutional threshold

that bars the entry of any judgment that is not sup-

a by clear and convincing proof of ‘actual

malice.’

52 U.S.L.W. at 4520.

B. Independent Review Of The Record Demonstrates That

The News Report At Issue Accurate'y Reported Law

Enforcement Activity And Was Not Broadcast With

Knowledge Of Falsity Or Serious Doubt As To Its Truth.

In the instant case, an independent review of the rec-

ord demonstrates that the plaintiffs have not and cannot

produce “clear and convincing” proof that the Station,

Schock, or Braun “realized that [the news report at issue

is] false” or that they “subjectively entertained serious

doubt” as to its truth. On the contrary, the record reveals

that the news report at issue is an accurate report of law

enforcement activities directed at a public official, the

very kind of information that lies at the core of the First

Amendment.

The record contains no evidence that the Station,

Schock, or Braun had any doubt at all—or even bases for

any doubt—about the facts that Sheriff's deputies had

accused Chief Barber of concealing the boat, and that the

boat was indeed hidden. Prior to the search, Detective

Johnson observed Chief Barber’s premises, and “person-

ally .. . confirmed that an object is concealed under a

truck cap and plywood at the side of the garage as de-

scribed as the hiding place of the boat by the informants.”

Johnson Dep., Exh. 1. The search warrant itself, which

Schock reviewed, repeatedly described the boat as “con-

cealed.” Jd., Exh. 2; Schock Dep. at 36-37. Subsequently,

when the search and seizure occurred, Schock himself

observed the boat, as did Detective Johnson, and they

both concluded that it was indeed concealed. According to

Detective Johnson, at the time of the search the boat was

still “covered up,” Johnson Dep. at 19, as he had stated in

his affidavit, id., Exh. 1. Indeed, as Detective Johnson

stated in his official Report of Investigation: “It was

nearly impossible to tell at first glance whether there was

a boat concealed or not.” /d., Exh. 4. Schock also person-

i i i te ee i

ally observed that at the time of the search the boat was

“obscured” from view by a camper top, plywood, and

tarpaulins. Schock Aff. { 16(h); Schock Dep. at 32. Sher-

iffs deputies spent more than 30 minutes uncovering it.

Id. at 32.

Similarly, Chief Barber has not and cannot produce

evidence of convincing clarity that the Station enter-

tained serious doubt as to the truth of the news report’s

statements that Detective Johnson “will present his evi-

dence to the grand jury, and ask indictments against both

the police and fire chief for hiding the boat,” and that

Chief Barber, “may soon be indicted.” With astonishing

artifice, however, the appellate court has baldly recon-

structed a record which, in the court’s view, is somehow

ambiguous as to whether Detective Johnson in fact in-

dicated to Schock that he planned to take his evidence to

the grand jury and that Chief Barber might be indicted.

Simply put, the appellate court has fabricated ambiguity

where there is none.

‘Chief Barber's assertion that the boat was in “plain sight” clearly

does not create any factual issues, since in equally “plain sight” were

the camper top, tarpaulins, and plywood which obscured the boat.

Similarly, Detective Johnson’s deposition testimony that “[alfter

arriving and looking—yes, you could see it ... if you looked at it

long enough you could visualize a boat,” Johnson Dep. at 118, creates

no factual issues as to the boat’s concealment with tarpaulins, a

camper top, and plywood, and does not constitute clear and convine-

ing evidence that the Station seriously doubted the fact of conceal-

ment. Certainly Detective Johnson himself had no such doubts. Not

only did he repeatedly testify that the boat was “covered up” and

“concealed,” Johnson Dep. at 19, 75, 117; id., Exh. 1, but the quoted

testimony indicates merely that through prolonged attention (“if you

looked at it long enough”) and with considerable imagination (“you

could visualize”), one might discern that an object in Chief Barber's

back yard was “a boat.” That the boat was “concealed” is confirmed

by Detective Johnson’s official Report of Investigation. /d., Exh.4,

_ An independent review of the record demonstrates

that the court of appeals literally changed the news report

at issue in order to conform to its inapposite analysis.

Instead of applying the law to the news report in the

instant case, which stated that Chief Kelley and Chief

Barber “may soon be indicted,” the court of appeals cre-

ated a different news report stating that “Fire Chief

Barber and Police Chief Kelley were ‘soon to be in-

dicted.’ ” App. 13a. Appellate courts might well change

the law, but no system of ordered justice can tolerate

courts that fabricate facts. The Ohio Supreme Court’s

cavalier refusal to correct the lower court’s alarming

revision of the record is the very antithesis of responsible

appellate review.

Thus, the court of appeals disingenuously misrepre-

sented the news report at issue as charging that Chief

Barber was, in fact, guilty of crime. App. 12a-15a. The

appellate court, without a scintilla of supporting evi-

dence, then speculated that since Chief Barber was not

“desiring to hide” the boat he was not actuaily “guilty,”

and viewed Chief Barber’s own alleged intentions as sup-

port of an inference of “actual malice” on the part of the

Station. App. 1la-16a. This analysis stands the rule of

New York Times Co. v. Sullivan on its head. Chief Bar-

ber’s own state of mind with respect to the boat—which of

course can be known only by Chief Barber—hardly dem-

onstrates with convincing clarity that the Station (or

Schock or Braun) subjectively entertained serious doubt

as to whether the boat was concealed, particularly in light

of their own direct observations of concealment.”

*Even if Chief Barber did not “intend” to hide the boat, he must

bear the consequences of vreating for law enforcement officers the

impression of concealment. In view of Chief Barber's status as a

public official, such consequences necessarily include public scrutiny

of this alleged wrongdoing.

Moreover, it is clear that the news report at issue

accused Chief Barber of nothing. It merely reported the

allegations asserted against him by police officials, the

probable cause for the search of his premises, and the fact

that the authorities planned to seek his indictment—not

that he had been convicted of any criminal offense. The

possibility that, in retrospect, the search and the effort to

indict Barber may appear to have been ill-advised affords

no basis whatever for punishing the Station, which mere-

ly informed the public of these law enforcement activities.

Such an analysis renders it impossible, as a practical

matter, for a news organization ever to report on a search

that has been conducted, an arrest that has been made, or

an indictment that has been sought.

The court of appeals further concluded that Detective

Johnson had “not exactly” told Schock that Chief Barber

“may soon be indicted.” App. 14a. This, manifestly, does

not constitute the clear and convincing evidence which it

is incumbent upon the plaintiffs to produce. Similarly, the

appellate court found a triable issue based on the news

report’s statement that “sheriff [sic] deputies swooped

down on the home of Fire Chief Lester Barber.” App.

10a. The appellate court apparently concluded that mate-

rial issues of fact exist because Detective Johnson had

The appellate court, summoning its unusual “experience and logic,”

App. lla, as opposed to evidence contained in the record, speculated

that the Station should have doubted whether Chief Barber really

intended to conceal the boat because it would be difficult to hide

effectively a 14-foot motorboat out-of-doors on one’s own property

for three years. This reasoning is nothing short of ludicrous; the

presence or absence of “actual malice” on the part of the Station does

not turn on how effectively Chief Barber hid the boat. Moreover, the

test for “actual malice” is not whether a defendant “should have

known” of probable falsity, but whether the defendant “in fact enter-

tained serious doubts as to the truth of his publication.” St. Amant v.

Thompson, 390 U.S. at 731 (emphasis added).

had “not exactly” “swooped down.” The appellate court,

however, wholly disregarded the fact that Chief Barber

himself expressly admitted the truth of this statement, L.

Barber Dep. at 25, thereby conclusively removing from

the instant case any possible factual dispute on this issue.’

Further, the appellate court’s wooden insistence upon

a news report that “exactly” recites each word of the

verbatim language used by every participant in a news-

woithy event abandons law and credulity. It is well estab-

lished that verbatim accounts of police charges of

wrongdoing and police action are not required. Indeed,

the importance of educating the public promptly and

clearly about law enforcement and official wrongdoing

demands that courts tolerate news accounts which

eschew hypertechnical language. As the court declared in

Orr v. Argus-Press Co., 586 F.2d 1108, 1117 (6th Cir.

1978), cert. denied, 440 U.S. 960 (1979):

The publicity which the press gives to such cases

plays an important role in our system of criminal

justice because it informs the public about the law,

warns the public of harm and serves to deter law

violations. The press functions in such cases as one of

* Indeed, this statement is a substantially accurate figure of speech

properly used to describe the uncontroverted facts that (a) several

sheriffs deputies descended unnannounced upon Chief Barber's

home (Chief Barber himself (erroneously) asserts that “eight

cruisers” were present); and (b) armed with a search warrant, the

deputies confiscated property and, as the Chief himself phrases it,

“went inside my garage and turned it upside down.” Schock Aff. © 16;

L. Barber Dep. at 30, 34. This Court has long held that the use of

mere hyperbole or figures of speech does not constitute actionable

defamatory falsehood. Greenbelt Coop. Publishing Ass’n v. Bresler,

398 U.S. 6, 14 (1970). By reversing on the basis of the Station’s use of

the phrase “swooped down” to describe what Chief Barber’s own

Complaint herein calls a “raid,” the appellate cour: has trivialized the

judicial process by establishing itself as an arbiter of style, not of

substance.

anere rer

Die ttt ttt

the sanctions in our system. Only by receiving in-

formation about our legal system, including its de-

fects and mistakes, can the public learn about the law

and the moral principles on which it is based, as well

as the law’s capacity for self correction and stability.

In reporting on this case, therefore, the newspaper

was simply performing its assigned role.

Like the readers for whom they write, few newspa-

per reporters are lawyers; yet they must often re-

port under a short deadline complex accusations and

arguments in colloquial language that the average

reader can understand. Sometimes, as in this case,

lawyers have spent hours preparing charges and

arguments that the reporter must summarize in a

few short paragraphs in a few minutes.

Because of the public importance of reporting on

cases of this kind, the law must allow some leeway for

misinterpretation and error.

Accord, Simonson v. United Press International Inc.,

654 F.2d 478, 482 (7th Cir. 1981); Lambert v. Providence

Journal Co., 508 F.2d 656 (1st Cir.), cert. denied, 423

U.S. 828 (1975); Williams v, WCAU-TV, 555 F. Supp.

198 (E.D. Pa. 1983); see Seymour v. A. S. Abell Co., 557

F. Supp. 951, 956 (D. Md. 1983) (“a long line of cases holds

that technical errors in legal nomenclature in reports of

matters involving violation of the law are of no legal

consequence”).

These principles are particularly apposite where, as in

the instant case, there has been no misinterpretation.

Independent review of the record admits of no doubt

whatever that the Station’s use of the term “swooped

down” accurately and fairly described the unannounced

search and seizure, L. Barber Dep. at 30-34, as Chief

Barber has acknowledged, id. at 25; that Detective John-

son did plan to seek indictment of Chief Barber based on

his possession of a stolen boat that appeared to be hidden

on the Chief's property, Johnson Dep. at 111; id., Exh. 1,

id., Exh. 2; and that Detective Johnson had, in fact,

indicated to Schock that Chief Barber may soon be in-

dicted, 7d. at 110-11. It is absurd to suggest that Schock

doubted these matters, since Detective Johnson’s own

uncontroverted testimony on them is clear."” When the

deposition and concluded that, because the Detective did not answer

the pending question by stating that he told Schock that Chief Barber

may soon be indicted, the Detective must not have so told Schock.

App. 12a-13a. This non sequitur is wholly belied by the record.

D~ ective Johnson actually testified as follows:

Q. I’m going to read from that (news report] and you tell me if I

read this correctly. ‘Both the police and fire chiefs in Lex-

ington Township may soon be indicted.’ Did I read that

correctly?

A. Yes.

Q. I’masking you, based on your being the individual who was

in charge of this investigation into Les Barber, is that

statement contained in that first sentence a true statement

as of February 10, 1982?

[objections noted]

Not necessarily.

Would you care to explain your answer?

If I took the case to the Stark County Grand Jury the search

warrant is for the property of Les Barber.

As for the police, as to their involvement, I can’t serve a

search warrant on a property and prepare the case and take

it tc Grand Jury and predict who they’re going to indict. The

property, being Les Barber’s, or the property being a boat,

was found and located and returned to its proper owner.

The Grand Jury could indict or could not indict at their vote.

The property owner, if the Grand Jury felt that someone

assisted him, they may choose to indict. That’s why I said I

will submit my evidence to the Stark County Grand Jury

and get indictments against whomever is responsible.

> Op

Q. Did you tell Larry Schock you were going to take your case

to the Grand Jury?

A. Yes.

plaintiff has not produced clear and convincing evidence

of doubt—much less seriows doubt—summary judgment

against the plaintiff is compelled. News reports which

concern law enforcement and police charges of official

misconduct must be granted “the breathing space that

gives life to the First Amendment.” Bose Corp. v. Con-

sumers Union, 52 U.S.L.W. at 4251. The requirement

imposed by the Ohio appellate courts that such a news

report “exactly” mirror the precise language of sources is

plainly inconsistent with the teaching of Bose.

Finally, that the decision below begs review in this

Court is most graphically dernonstrated by the reversal of

the grant of summary judgment as to petitioner Braun.

The record is devoid of evidence that Braun, the Station’s

news director, was even aware of the news report at issue

on the date of its broadcast, much less that he “realized” it

“was false” or “subjectively entertained serious doubt” as

to its truth. On the contrary, the record demonstrates

that Braun neither reviewed nor participated in the

preparation of the news report at issue in any way. Braun

Aff. § 9; see Schock Dep. at 48-50. The failure of the court

of appeals to affirm the trial court’s summary disposition

of the claims against Braun flies in the face of this Court’s

admonition that states may not impose defamation liabil-

Q. Did you tell him they may or may not indict either of these

individuals named in this story?

[objections noted]

Q. Did you make that statement with respect to the fire chief?

A. Yes.

Q. Okay. That they may or may not indict?

A. That's right.

Johnson Dep. at 107-11 (emphasis added). Contrary to the appellate

court’s disingenuous misreading of Detective Johnson’s “not neces-

sarily” response, this exchange clearly demonstrates that Schock had

no basis to doubt Chief Barber’s possible indictment.

ity without a showing of fault. Gertz v. Robert Welch,

Inc., 418 U.S. at 339."

CONCLUSION

The news report at issue accurately informed the public

about law enforcement activity. As such, it epitomizes

one of the most commonplace services rendered by local

television news. Moreover, because the report concerned

charges of wrongdoing against an individual entrusted

with public responsibility, its publication goes to the es-

sence of the First Amendment. By failing to perform its

constitutional duty to ensure that the record contains the

evidence mandated by the First A.nendment, the Ohio

Supreme Court once again has ere-ted for Ohio news

media a formidable obstacle to reporting on law enforce-

ment activity and charges of official impropriety. Con-

sidered together with the Ohio court’s decision in E mbers

Supper Club, Inc. v. Scripps-Howard Broadcasting Co.,

9 Ohio St.3d 22, 457 N.E.2d 1164, cert. denied, 52

U.S.L.W. 3874 (U.S. June 4, 1984) (No. 83-1653), the

decision below can only result in suppression of informa-

tion about the activities of government and public

officials—the Procrustean result which this Court so

forcefully rejected in New York Times Co. v. Sullivan. If

a commurity television station must bear the burden—

through years of costly litigation—of a public official’s

own inability to produce evidence that the station har-

bored serious doubts as to the truth of its broadcast about

'! The Ohio appellate courts’ refusal to sustain the summary judg-

ment granted to the Station as to Mrs. Barber's claims is further

evidence of their failure to pay even lip service to the record in the

instant case, since, as Mrs. Barber herself has acknowledged, the

news report at issue makes no reference to her of any kind. J. Barber

Dep. at 5. It is well established that the First Amendment precludes

the imposition of defamation liability based on a news report which is

not “of and concerning” the plaintiff. New York Times Co. v. Sulli-

van, 376 U.S. at 288.

him, it often will choose simply to omit or truncate cover-

age of law enforcement activity involving public officials.

It is precisely for this reason that when a public official’s

defamation claims are exposed as meritless at the sum-

mary judgment stage, New York Times mandates that

the case be weeded out. After the plaintiff has had every

opportunity to obtain proof of “actual malice,” but has

failed to do so, trial upon his claims is but a needless—and

futile—waste of judicial resources.

Ultimately, incessant and unwarranted litigation of

frivolous libel claims can only serve to deprive the public

of information—crucial to our system of self-

government—about law enforcement activities and offi-

cial charges of governmental wrongdoing.

Respectfully submitted,

BRUCE W. SANFORD

Counsel of Record

Louis A. COLOMBO

LEE LEVINE

BRIAN S. HARVEY

BAKER & HOSTETLER

818 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 861-1500

Counsel for Petitioners

APPENDIX

APPENDIX A

[Order delivered upon rendering of judgment

by the Supreme Court of Ohio]

IN THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, City of Columbus

1984 TERM

To wit: April 18, 1984

No. 84-342

LESTER J. BARBER,

Appellees/Cross-Appellants,

SCRIPPS-HOWARD BROADCASTING Corp. et al.,

Appellants/Cross-Appellees.

APPEAL AND CROSS-APPEAL FROM THE COURT OF

APPEALS FOR STARK COUNTY

This cause, here on appeal as of right from the Court of

Appeals for Stark County, was considered in the manner

prescribed by law, and, no motion to dismiss such appeal

having been filed, the Court swa sponte dismisses the

appeal for the reason that no substantial constitutional

question exists herein.

It is further ordered that a copy of this entry be certi-

fied to the Clerk of the Court of Appeals for Stark County

for entry.

I, James Wm. Kelly, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly

copied from the Journal of this Court.

APPENDIX B

[Judgment and Opinion by the Court of Appeals

for Stark County, Ohio]

IN THE COURT OF APPEALS

FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CASE NO. CA 6254

LESTER J. BARBER and

JANET E. BARBER

Plaintiffs/Appellants,

SCRIPPS-HOWARD BROADCASTING

CORPORATION, ERIC BRAUN,

LARRY SCHOCK, WILLIAM JOHNSON

and ROBERT BERENS

Defendants-Appellees.

FILED

HELEN J. GAROFALO

Clerk of Courts

STARK COUNTY, OHIO

DEC 29, 1983 1:08 PM

JUDGMENT ENTRY

For the reasons stated in the Memorandum-Opinion on

file, the judgment of the Court of Common Pleas of Stark

County, Ohio is reversed as to defendants-appellees

Scripps Howard [sic] Broadcasting Corporation, Larry

Schock and Eric Braun and this case is remanded to that

Court for further proceedings according to law and con-

sistent with our opinion on file. The judgment of the

Court of Common Pleas of Stark County, Ohio, as to

defendants-appellees William Johnson and Robert Be-

rens is affirmed.

IN THE COURT OF APPEALS

FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CASE NO. CA 6254

Decided: Dec. 29, 1983

LESTER J. BARBER and

JANET E. BARBER

Plaintiffs/Appellants,

¥.

SCRIPPS HOWARD BROADCASTING

CORPORATION, ERIC BRAUN,

LARRY SCHOCK, WILLIAM JOHNSON

and ROBERT BERENS

Defendants-Appellees.

OPINION

JUDGES

Hon. Norman J. Putnam, P.J.

Hon. John R. Milligan, J.

Hon. John R. Hoffman, J.

APPEARANCES

Davip A. LIEBERTH, EsqQ.

277 South Broadway

Akron, Ohio 44308

and

JEFFREY JAKMIDES, Esq.

441 East Main Street

Alliance, Ohio 44601

COUNSEL FOR APPELLANTS

Louis A. COLOMBO

DaAvID L. MARBURGER

BAKER & HOSTETLER

3200 National City Center

Cleveland, Ohio 44114

and

WILLIAM A. LEFAIVER

GUREN, MERRITT, FEIBEL,

Socc & COHEN

700 Terminal Tower

Cleveland, Ohio 44113

COUNSEL FOR APPELLEES

Stark County, Case No. CA 6254

HOFFMAN, J.

This is an appeal taken from summary judgment ren-

dered in favor of Scripps Howard Broadcasting, Eric

Braun, Larry Schock, William Johnson and Robert Ber-

ens, aefendants-appellees herein.

Plaintiffs-appellants herein Lester J. Barber and Janet

Barber sued the above appellees for libel, invasion of

privacy and trespass.

Appellants’ complaint arose out of the execution of a

search warrant at their home on February 10, 1982. Les-

ter Barber, the volunteer Fire Chief of Lexington

Township and Mrs. Barber were at home when Detective

William Johnson of the Stark County Sheriffs Depart-

ment arrived accompanied by two other officers and

appellee Schock, a “stringer reporter” for appellee,

Scripps Howard Broadcasting Corporation (T.V. 5 in

Cleveland).

There is undisputed testimony that Schock began film-

ing the incident from the beginning and continued

throughout the serving of the warrant and the search that

ensued. The main object of the search was a 14-foot boat

owned by one Gene Dawson of Canton, Ohio. On January

28, 1982 Dawson belatedly reported the boat as having

been stolen in August of 1979 from Berlin Reservoir. In

reality the boat had been missing from Dawson since July

1978 when appellant Barber, Lexington Police Chief Paul

Kelley, a Stark County Sheriff's officer and a fourth offic-

er recovered the boat from Berlin Reservoir after receiv-

ing a call from the Lexington Police Department of a

boating accident. They found the boat upside down in the

water. Dawson stated he had left the boat tied to the

shore in a public area and returned a day later to find it

gone. (Report of investigation February 8, 1982, page 3).

A 1967 Johnson outboard motor was attached to the boat.

Detective Johnson admits in his deposition that a record

was made of his department’s involvement in the recov-

ery at that time. (Johnson Dep. at 66).

Police Chief Kelley contacted the Alliance Police De-

partment (dispatcher Stella Gruz) who transmitted the

boat’s registration numbers to the statewide NCIC com-

puter in an attempt to identify the owner of the boat.

Subsequently, appellant Barber asked for assistance

from the Coast Guard, the Army Corps of Engineers and

local Sheriffs’ Departments. The Coast Guard responded

to Barber that “there is no such boat.” (Barber Affidavit

[sic] at 11).

Immediately upon being served with the warrant by

Deputy Johnson, Barber advised him that no search war-

rant was necessary, that the boat was behind his garage

and had been there for some months. Prior to that, the

boat had been stored in the Township Fire Station and

before that it had been in the Barber backyard, according

to appellant Barber.

Barber has testified that his department’s practice is to

store recovered items from Berlin Reservoir in the fire

station, and to store a department fire truck on his prop-

erty, a few doors away from the station. (Barber Dep. at

p. 18).

Johnson advised appellants that the boat had been

stolen and caused it to be removed and returned to Daw-

son. The motor in question was lying in the boat. There is

conflicting testimony between Schock and Lester Barber

as to what dialogue they had that day, but Schock has

averred that Barber told him of his attempts to locate the

boat’s owner. (Schock Aff., Para. 13).

Reporter Schock telephoned his information to T.V.

Channel 5 and microwaved his videotape to the station. A

writer or writers in the news department of T.V. 5 pre-

pared the actual news copy, called a “story” which was

broadcast that same night.

First came this introductory “teaser”:

A Police and Fire Chief in Stark County appear to be

in lots of hot water. The exclusive details, next.

Then the broadcast itself, the lead story of the newscast:

Both the Police and Fire Chiefs in Lexington

Township may soon be indicted. Today Stark County

Sheriff's Deputies swooped down on the home of Fire

Chief Lester Barber. They found a small motorboat

recovered from Berlin Reservoir 2% years ago. The

Chief, and Police Chief Paul Kelley claim they

couldn’t find the boat’s owner. But using the boat’s

registration number Police found the owner just like

that. (Announcer’s empnh.).

“It took approximately five to eight minutes to

determine the proper owner of the boat through

the . . . a telephone call to the Bureau of Water-

craft, Columbus, Ohio.” (Johnson’s voice on tape).

Johnson will present his evidence to the Grand Jury

and ask indictments against both the Police and Fire

Chief for hiding the boat.

Neither Fire Chief Lester Barber or Police Chief Paul

Kelley have been indicted or arrested in this matter.

Detective Johnson never presented this case to the Stark

County Prosecutor or to the Stark County Grand Jury.

(Johnson Dep. at 96-97). No charges have resulted from

this search and investigation. (Deposition at 96).

T.V. Channel 5 has not followed up the story in any way

since the night of the broadcast. Appellee Schock testified

that he suggested a follow up, but that the T.V. Station

was not interested. (Schock deposition at 45).

Appellees herein moved for summary judgment and

appellants opposed the motion with evidentiary mater-

ials. After a July 14, 1983 hearing the Court of Common

Pleas issued two separate jucgment entries and opinions

respectively in favor of:

(1) Scripps Howard, Schock and Braun, and

(2) Johnson and Berens.

As to the first group of appellees and the broadcast

produced, the court held:

The court finds the broadcast . . . contained factual

statements and that those factual statements were

essentially true. The court finds that the gist or sting

of the factual statements. . . were true. (August 12,

opinion, Para. 1).

As to Johnson and Berens, the court held:

... There appears to be no proof of conspiracy or

malice in Deputy Johnson or Sheriff Berens obtain-

ing the search warrant. Absence (sic) of conspiracy

and malice and armed with a search warrant that is

valid on its face, Deputy Johnson and Sheriff Berens

as be held liable. . . (August 12, 1983 opinion, P.

Appellants raise the following four assignments of

error:

ASSIGNMENT OF ERROR NO. I.

THE TRIAL COURT ERRED AS A MATTER OF

LAW IN FINDINGTHAT PLAINTIFF, LESTER

BARBER, WAS A “PUBLIC OFFICIAL” FOR

PURPOSES OF THIS LIBEL LITIGATION.

ASSIGNMENT OF ERROR NO. II.

THE TRIAL COURT ERRED BY FINDING

THAT THERE WAS NO GENUINE ISSUE AS

TO MATERIAL FACT IN FINDING THAT THE

BROADCAST OF FEBRUARY 10, 1982 CON-

TAINED FACTUAL STATEMENTS THAT

WERE ESSENTIALLY TRUE.

ASSIGNMENT OF ERROR NO. III.

THE TRIAL COURT ERRED IN FINDING

THAT THERE WAS NO GENUINE ISSUE AS

TO MATERIAL FACT WITH RESPECT TO ITS

FINDING THAT DEFENDANTS DID NOT ACT

WITH ACTUAL MALICE.

10a

ASSIGNMENT OF ERROR NO. IV.

THE TRIAL COURT ERRED IN NOT FINDING

THAT DEFENDANT JOHNSON EXCEEDED

THE SCOPE AND PRIVILEGE OF THE

SEARCH WARRANT.

a I.

After a review of the authorities and taking note of

appellants’ argument of a slightly perceptible shift in the

judicial definition of a public official, we hold that Lester

Barber is a public official for purposes of this action.

Being an elected Township Clerk, Mrs. Barber is clearly a

public official. This assignment of error is overruled.

II.

By this assignment of error appellants claim that a

genuine dispute exists as to whether certain material

factual statements of the broadcast were true or not.

Based on the record before us, we find serious ques-

tions do exist whether the elements comprising the

broadcast were true or false at the time of the broadcast.

The following analysis is a scrutiny of the words them-

selves and does not touch on the less measurable gist or

sting produced by the broadcast.

The broadcast said:

Sheriffs Deputies swooped down on the home of Fire

Chief Lester Barber.

Appellee Detective Johnson, the officer in charge of the

raid testified:

I didn’t make that statement and I didn’t swoop down

on Les Barber’s house. (Deposition at 112, line 1).

The closing sentence of the broadcast used the phrase

“hiding the boat.” Sworn testimony brings out a genuine

lla

dispute as to the material fact issue whether the boat was

hidden. In his disposition, Detective Johnson admitted

that the boat was visible from Route 183 (page 118, line

4). Lester Barber testified that the boat was “in plain

sight of everybody and anybody between the two State

highways.” (His Dep. at 29). Lester Barber also states

that “at no time was the boat hid, never.” (Dep. at 29, line

19).

Appellee Schock admits that on the day of the search,

Barber told him the boat had been at the Barber property

for at least 24% years:

SCHOCK: I also asked how long he had had the boat

there.

QUESTION: How long did he?

ANSWER: He wasn’t certain whether it was two

and a half or three and a half years. (Schock deposi-

tion, page 35).

Schock testified that on the day of the search, Barber

also told him the boat had been stored in the Fire/Police

Station for some time and was later moved where it was

located on the day of the search. (Schock Dep. at P. 36).

Schock testified that before calling in the story to T.V.

5, Police Chief Paul Kelley “reiterated what Barber said.”

(Deposition at page 36).

Additionally, Schock admits that Detective Johnson

did not dispute to him (Schock) any of the facts of the

boat’s storage that Barber told him and Kelley corrobo-

rated. (Dep. at 37).

Common experience and logic tell us that an individual

desiring to hide a piece of property the size of a boat does

not store it in a public building and outside on his own

property for an uninterrupted period of three and one half

(3%) years.

12a

Barber has also testified that the boat was in the same

condition on the day of the search as on the day it was

found, had never been cleaned up and had never been

used during that entire period. (His Dep. at page 15).

There exists contradictory testimony in Johnson’s

deposition as to the pivotal issue of what he (Johnson) told

Reporter Schock regarding Barber being indicted.

Schock has averred that Johnson “told me that Chief

Barber was one of the persons who might be indicted.”

(Schock Affidavit, paragraph 14).

However, in deposing Johnson, appellants’ counsel

correctly read the following quote from the broadcast:

Both the Police and Fire Chiefs in Lexington

Township may soon be indicted.

Counsel then asked:

I am asking you, based on your being the individual

in charge of this investigation into Les Barber, is

that statement contained in the first sentence a true

statement as of February 10, 1982?

After objections were noted, Johnson chose to answer:

ANSWER: Not necessarily. (Dep. at 108).

QUESTION: Would you care to explain your

answer?

ANSWER: If I took the case to the Stark County

Grand Jury. . . the search warrant is for the proper-

ty of Les Barber. . . J can’t serve a search warrant

on a property and prepare the case and take it to the

Grand Jury and predict who they are going to indict

or not indict. The Grand Jury could indict at their

vote. (Deposition at 109). (Emphasis ours).

The plain meaning of the above is that Johnson did not

tell Schock that appellant Barber “may soon be indicted.”

Had Johnson told Schock that Lester Barber would “soon

l3a

be indicted” or words to that effect, it would have been a

simple task for Johnson to relate that in his testimony by

plainly answering in the affirmative.

Our evaluation of his testimony is buttressed by the

following direct exchange:

QUESTION: Did you tell Larry Schock that you

were going to ask for an indictment against the Fire

Chief for hiding the boat?

MR. LeFAIVER: Objection.

ANSWER: No. (Deposition at 117, line 17).

MR. LIEBERTH: Okay, I think he answered the

question. Did you get his answer?

MR. CEFARATTI: Yes, I did.

Reasonable minds could find, based on the facts Schock

knew on February 10, 1982, that the assertion that Fire

Chief Barber and Police Chief Kelly were “soon to be

indicted” for “hiding the boat,” clearly a defamatory

statement, was made with the knowledge it was false or

with a reckless disregard of whether it was true or false.

What Johnson told Schock is of paramount importance

because it reveals Schock’s “state of mind” at the time of

the alleged libel.

Counsel for appellee Scripps Howard argues to this

court that “precisely how Johnson expressed his com-

ments is not what matters.” (Brief at 23). However,

counsel earlier urged the opposite approach be taken to

Johnson’s testimony:

What they (appellants) do is they ignore Johnson’s

direct testimony ... let me read the exact testi-

mony. The exact testimony ... (Transcript of

proceedings, page 16).

l4a

Since words and their plain meaning are what any libel

case is all about, this court will choose appellee’s approach

at the hearing—that of interpreting the words as stated

and recorded.

In overruling a summary judgment in an invasion of

privacy action, the Third District Court of Appeals fo-

cused on one “not exactly” answer made by a police officer

in response to a question of whether he was “bugged” or

not. Shifflet v. Sansotta, Marion County, unreported

decision of June 18, 1982, case number 9-80-41.

In the instant case there is more than one example of

conflicting, ambiguous testimony in Johnson’s deposition

of the “not exactly” genre.

This ambiguity is further exacerbated by Schock

throwing away his notes taken that day (Depostion at 24)

and by a memorandum he prepared for appellee Braun

about the events that day demagnetized and erased from

Schock’s home computer. (Deposition at 26).

The broadcast effectively accuses the Barbers of violat-

ing the Ohio Criminal Code Section 2913.51(A) which

reads as follows:

(A) No person shall receive, retain, or dispose of

property of another, knowing or having reasonable

cause to believe that the property has been obtained

through commission of a theft offense.

The Drafting Committee comment on that section reads:

Committee Comment to H 511

This section differs from the former offense of receiv-

ing stolen property in two important respects.

Under the former statute an offender actually had to

know that the property received was stolen proper-

ty, whereas under this section it is sufficient if the

offender has reasonable cause to believe that the

15a

property is “hot.” Also, the former offense involved

receiving only property obtained as the result of

larceny, robbery, embezzlement, larceny by trick, or

fraud. Under this section, any theft offense can be

the means by which the property was obtained.

The penalty for receiving stolen property is identical

to the penalty for theft. See new section 2913.02 of

the Revised Code.

It is to be noted that “concealing” is not an element of

the crime. The presence or absence of “concealment” may

shed light, however, upon the actor’s state of mind as to

knowing or not that the property had been obtained

through the commission of a theft offense.

The fact as to concealment or the absence of it is both

material and genuinely disputed.

Jurors acting reasonably could find the accusation to be

false and could further find that the evidence shows with

convincing clarity that it was falsely made with actual

malice.

The statements about what a Grand Jury might do in

the future weigh in the balance only insofar as they func-

tion as an accusation of present guilt and demonstrate the

reporters’ willingness to speak with reckless disregard of

the truth. See N.Y. Times v. Sullivan (1964), 376 U.S.

254.

Such a statement is merely a forecast or prediction of

future conduct of human beings. As such, it is incapable of

measurement in terms of present truth or falsity. Never-

theless, such statement clearly connotes to a substantial

portion of the community an accusation of present guilt of

crime.

This assignment of error is sustained.

16a

Ill.

To the extent that this assignment of error reaches the

matters discussed under the second assignment of error,

it is well taken and sustained.

The balance of the assignment is an incorrect

characterization of the opinion of the trial court and, as

such, is overruled.

IV.

There is no evidence in the record demonstrating that

Detective Johnson exceeded the scope and privilege of

the search warrant. This assignment of error is over-

ruled.

Having sustained appellants’ second assignment of

error and overruled the others, the summary judgment of

the Court of Common Pleas of Stark County, Ohio as to

appellees Scripps Howard Broadcasting Corporation,

Larry Schock and Eric Braun is reversed and the case is

remanded to said court for further proceedings consistent

with this opinion.

The summary judgment as to appellees Robert Berens

and William Johnson is affirmed.

Putnam, P.J. and

Milligan, J. concur.

17a

APPENDIX C

(Judgment and Opinion by the

Court of Common Pleas of Stark County, Ohio]

STATE OF OHIO, STARK COUNTY:

SS:

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

CASE NO. 82-1091 OT

LESTER J. BARBER, et. al.,

Plaintiffs,

SCRIPPS-HOWARD BROADCASTING CorpP. et al.,

Defendants.

FILED

HELEN J. GAROFALO

Clerk of Courts

STARK COUNTY, OHIO

Aug. 12, 1983

JUDGMENT ENTRY—OPINION

This came before the Court upon Motion of Scripps-

Howara Broadcasting Corporation for Summary Judg-

ment on the grounds that there is no genuine issue as to

any material fact and that the Defendants were entitled

to judgment as a matter of law. The Court finds [the]

Motion is timely considered in that all discovery has been

completed.

After hearing and Memorandum of Law submitted by

both parties, the Court makes the following Findings:

18a

1. Based upon the facts submitted via the transcripts

of depositions of Lester Barber and Janet Barber, of

Larry Schock and of Deputy Johnson, the Court finds

that the broadcast of February 10, 1982 on the eleven

o’clock Eyewitness News, contained factual statements

and that those factual statements were essentially true.

The Court fifds that the gist or sting of the factual state-

ments contained in the news broadcast were true and

therefore upholds Defendant’s Motion for Summary

Judgment on ground number one.

2. The Court finds that Lester Barber and his wife

were clearly public officials. The Court finds that a “pub-

lic official applies [at] the very least, to those among the

hierarchy of government employees who have or appear

to have, to the public, a substantial responsibility for the

control and the conduct of government affairs.” Rosen-

blatt v. Baer, 383 U.S. 75 (1966).

In Ohio “the most decisive characteristic of a public

officer is determined by the quality of the duties to be

performed . . . and by the fact that such duties are con-

ferred upon an incumbent by a position of law.” 14 O. Jur.

3, 538 Civil Servants Section 14.

Ohio Jurisprudence 3rd goes on further to describe a

public function: “If the incumbent of a position receives

his authority from the law and discharges some of the

functions of government, he will be considered a public

officer. Such exercise must, however, be by virtue of his

election or appointment to the office . . . an individual on

whom is devolved the performance of independent

statutory duties that to some extent involve the exercise

of a part of the sovereignty of a state, not subject to the

direction and control of statutory authority is generally

considered a public officer.” 14 O. Jur. 3, 590, Civil Ser-

vants Section 15.

19a

After a review of Ohio Revised Code Section 3737.24

entitled Investigation of Cause of a Fire, and Ohio Re-

vised Code Section 3781.03, entitled Enforcement, Su-

pervision and Records, the State Legislature has vested

upon a fire chief of a township, the duty to enforce build-

ing safety provisions and to investigate fires and the

cause of fires and therefore perform independent statuto-

ry duties.

Both statutes clearly meet the test of a public officer. A

township fire chief of a fire department exercises his

duties independently, especially in light of the Ohio Re-

vised Code.

Furthermore, the position of a fire chief of a township is

specifically created by Ohio Revised Code Section 505.38.

The position is created and referred to as an officer in

relevant statutes and therefore is vested in the position

by law. The authority and duty are functions of the

government, exercised on behalf of the public. The

statutory powers are exercised by virtue of the persons

appointed to the office of fire chief of the township. The

position of a volunteer fire chief of a township clearly

meets the test of public official enumerated in Rosenblatt

v. Baer, supra.

Mrs. Barber is clearly a public official that has been

elected by the constituents of Lexington Township and

falls within all the requirements of being a public official.

In order for the Plaintiffs to maintain their position,

once it has been determined that the Plaintiffs are public

officials, they must show actual malice in order to recover

in this case under either a defamation or false-light in-

vasion of privacy. Based upon the finding number one,

there being no factual inaccuracy of the Eyewitness News

Report, the Court finds that Defendants are entitled to

judgment as a matter of law.

20a

3. On the issue of trespass, the Court finds no tres-

pass from the undisputed facts and therefore grants De-

fendant’s Motion for Summary Judgment.

Based upon the above conclusions the Court finds De-

fendant’s Motion is well taken on the issue of invasion of

privacy.

Based upon the record, exhibits and memoranda here-

in, the Court finds that there exists no genuine issue as to

material fact and the Defendants are entitled to judgment

as a matter of law.

Hon. SHEILA G. FARMER

DATED: 08/03/83

2la

APPENDIX D

[Judgment by the Supreme Court of Ohio

(same as Appendi. A)]

(IN THE SUPREME COURT OF THE STATE OF OHIO]

THE STATE OF OHIO, City of Columbus

1984 TERM

To wit: April 18, 1984

No. 84-342

LESTER J. BARBER.

Appellees/Cross-Appellants,

SCRIPPS-HOWARD BROADCASTING CorpP., et al.,

Appellants/Cross-Appellees.

APPEAL AND CROSS-APPEAL FROM THE COURT OF

APPEALS FOR STARK COUNTY

This cause, here on appeal as of right from the Court of

Appeals for Stark County, was considered in the manner

prescribed by iaw, and, no motion to dismiss such appeal

having been filed, the Court swa sponte dismisses the

appeal for the reason that no substantial constitutional!

question exists herein.

It is further ordered that a copy of this entry be certi-

fied to the Clerk of the Cort of Appeals for Stark County

for entry.

I, James Wm. Kelly, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly

copied from the Journal of this Court.

22a

APPENDIX E

[Deposition of William L. Johnson, Exhibit 1]

AFFIDAVIT FOR SEARCH WARRANT"

IN THE COMMON PLEAS COURT

STARK COUNTY, OHIO

AFFIDAVIT FOR SEARCH WARRANT

STATE OF OHIO

LESTER J. BARBER

BEFORE WILLIAM A. MORRIS, Judge

The undersigned being duly sworn deposes and says:

That he has reason to believe that on the premises known

as: 14695 Gaskill N.E., Lexington Township, Stark Coun-

ty, Ohio, next to a certain garage located to the rear of

said property and or in said garage which is a 40 x 40

cement block single story two stall structure located in

the Township of Lexington, Stark County, Ohio, there is

now being concealed certain property, namely:

1A night time search may be conducted if the search commences

any time before 7:00 A.M., or aft ~-8:00 P.M., but only if the issuing

Judge by appropriate provision in the Warrant, and for reasonable

cause shown, authorizes the issuance of the Search Warrant at times

other than daytime. Accordingly, the Affidavit should contain facts

developing such “reasonable cause for a night time search” if a night

time search warrant is to be requested.

(Description)

One 1959 Lonestar runabout outboard motor boat,

Lic. #OH 3822, Serial #92935073, 40 HP Johnson

outboard motor, Mod NR RdSL 2932, Serial #NR

2739384, 2 oars, six life jackets, one marine 12vt.

battery, fire extinguisher, 2 anchors, 3 speed electric

Shakespear trolling motor

which are ® (Give alleged grounds for search and seizure)

evidence of the commission of a criminal offense, to wit:

Receiving Stolen Property, (Sec. 2913.51 O.R.C.).

And that the facts tending to establish the foregoing

grounds for issuance of a Search Warrant are as follows:

I, William L. Johnson, am a Detective with the Stark

County Sheriffs Office. The above described boat and

equipment were stolen from Gene Dawson in August 1979

from a location at Berlin Dam. On or about January 30,

1982 I received information possibly the equipment were

at the location described above where he personally ob-

served the boat covered by a truck cap and plywood. A

second informant, confirmed that he had also seen the

boat there within the last 24 hours. I have personally

observed the area to be searched and have confirmed that

an object is concealed under a truck cap and plywood at

the side of the garage as described as the hiding place of

the boat by the informants.

“RULE 41(B) of the Ohio Rules of Criminal Procedure provides:

“A Warrant may be issued under this Rule to search for and seize

any: 1) evidence of the commission of a criminal offense; or 2) con-

traband, the fruits of crime, or things otherwise criminally pos-

sessed; or 3) weapons or other things by means of which a crime has

been committed or reasonably appears about to be committed.”

/s/ William L. Johnson

(Signature & Title of Affiant)

Sworn to before me, and subscribed in my presence, 2/10,

1982.

/s/ William A. Morris

JUDGE OF THE COMMON PLEAS COURT

25a

APPENDIX F

[Deposition of William L. Johnson, Exhibit 2]

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

SEARCH WARRANT

DAYTIME ONLY”

STATE OF OHIO,

LESTER J. BARBER

To the Sheriff of Stark County and all his Deputies:

To any Police Officer of the City of Canton, Stark County,

Ohio:

Affidavit having been made before me by William L.

Johnson that he has reason to believe that (on the premis-

es known as) 14695 Gaskill N. E., Lexington Township,

Stark County, Ohio, next to a certain garage located to

the rear of said property and or in said garage which is a

40 x 40 cement block single story two stall structure

located in the Township of Lexington, Stark County,

Ohio, there is now being concealed certain property,

namely: (describe property)

One 1959 Lonestar runabout outboard motor boat Lic.

#OH 3822 Serial #92935073. 40 HP Johnson outboard

motor Mod NR RdSL 293, Serial # NR 2739384, 2 oars,

! The term “daytime” is defined to mean the hours from 7:00 A.M.

to 8:00 P.M. This Warrant, when issued by the Judge, may be used

only when executed between the time of 7:00 A.M. and 8:00 P.M.

26a

six life jackets, Shakespear trolling motor which are®

(give alleged grounds for search and seizure) evidence of

the commission of a criminal offense, to-wit: Receiving

Stolen Property (Sec. 2913.51 O.R.C.).

and I am satisfied that there is probable cause to believe

that the property so described is being concealed on the

premises above described and that the foregoing grounds

for application for issuance of the search warrant pur-

suant to Rule 41(B) of the Ohio Rules of Criminal Proce-

dure exist.

YOU ARE HEREBY COMMANDED to search forth-

with the place named for the property specified, serving

this warrant and making the search in the daytime, and if

the property be found there to seize it, leaving a copy of

this warrant and a receipt for the property taken, and

prepare a written inventory of the property seized and

return this Warrant and bring the property before me

within three [3] days of this date, as required by the law.

Dated this 10th day of Feb., 1982

/s/ William A. Morris

JUDGE OF THE COMMON PLEAS COURT

2?RULE 41(B) of the Ohio Rules of Criminal Procedure provides:

“A Warrant may be issued under this Rule to search for and seize

any:

(1) evidence of the commission of a criminal offense; or

(2) contraband, the fruits of crime, or things otherwise crimin-

ally possessed; or

(3) weapons or other things by means of which a crime had

been committed or reasonably appears to be committed.”

27a

RETURN®

Feb. 10, 1982

I received the attached search warrant Feb. 10, 1982,

and have executed it as follows:

On Feb. 10, 1982 at 4:00 o’clock PM, I searched the

person/premises described in the warrant and I left a

copy of the warrant with” Lester J. Barber together with

a receipt for the items seized.

ATTACHED is an inventory of property taken pursuant

to the Warrant.

/s/ William L. Johnson

3 The Return is to be signed by the officer who made the search and

completes and verifies the inventory, a copy of which is to be attached

to the Return. The Return is to be taken back to the Judge who issued

the Search Warrant. Pursuant to Rule 41(E) of the Ohio Rules of

Criminal Procedure, the Judge before whom the Warrant is returned

shall attach to the Warrant a copy of the Return, inventory, and all

other papers in connection therewith (which includes the Affidavit

and transcript of any sworn testimony), and shall file them with the

Clerk.

‘Name of person searched or owner or “at the place uf search”

> To be signed by the officer who made the search and compiled and

verified the inventory.

28a

APPENDIX G

[Deposition of William L. Johnson, Exhibit 4]

REPORT OF INVESTIGATION

Case No. 82-801, Date: Wednesday, February 10, 1982

SUBJECT: SUPPLEMENT TO SEARCH WARRANT?/

RECOVERED STOLEN PROPERTY LEXINGTON

TWP. 2045 hr

COMPLAINANT: DETECTIVE WILLIAM

JOHNSON U-35

STARK COUNTY SHERIFF'S

OFFICE

RECOVERED (1) 1959 LONE STAR, green &

PROPERTY: white, outboard motor boat,

O/L: OH8822AD, 1979 issue, serial

#92935073, 14’ in length.

40 horsepower JOHNSON

outboard, serial #J2739384, model

#RDSL29E

LOCATION 14695 Gaskill N.E., rear of the

RECOVERED: _ garage

OWNER OF LESTER D. BARBER residence

LOCATION: Same as location recovered

DOB: 11/12/29—SSN: 282-26-9927

ARRIVAL TIME: 1600 hrs. date

REMARKS: The reporting officer acting on information

provided through informants that a stolen boat motor and

contents would be located at the LESTER BARBER

residence at the above address, did obtain a search war-

rant on this date from the Stark County Prosecutor's

29a

Office. After this warrant was signed by JUDGE MOR-

RIS, the reporting officer went to the residence of LES-

TER BARBER with SGT. THOMAS TAYLOR U-63,

and DEPUTY ELDEN WORKINGER U-131, and an

independent witness, LARRY A. SCHOCK.

Upon arrival at the driveway of the residence, MR.

LESTER J. BARBER was served his copy of a search

warrant, naming the articles to be searched in the adja-

cent garage. At the time, MR. BARBER led the report-

ing officer and all others present to the rear of the garage,

showing an outboard motor boat with a motor lying with-

in the hall [sic], covered by a truck camper cap and pro-

tected from the north side, by several sheets of plywood.

It was nearly impossible at first glance to determine

whether there was actually a boat concealed or not. After

taking numerous photographs of the location of the boat,

the truck camper cap and other items were moved from

the top of the boat and from the side and it was pulled

from the location by MR. BARBER, in his jeep to the

driveway of the residence. At that time, a search was

made of MR. BARBER’S garage in an attempt to locate

other articles that were missing from the boat when

stolen, namely oars, life jackets, marine battery, trolling

motor and ete. The search of this garage proved negative

and was conducted by the reporting officer, SGT.

TAYLOR & DEPUTY WORKINGER.

DICKEN & MARSHALL SPORTS CENTER of 817

South Union Ave., Alliance, Ohio, Phone: 823-7178, was

summoned to the scene with a boat trailer, in order to

transfer the boat from its present trailer onto the other

trailer, in order to transport it to the Stark County Jail.

After the boat was transferred from the trailer that it was

presently sitting on, onto the trailer owned by the DICK-

EN & MARSHALL SPORTS CENTER COMPANY, it

was transported to the Stark County Jail and placed in

30a

the garage and tagged as evidence. At 1700 hrs. date, all

officers did leave the residence and a copy of the search

warrant was left with MR. BARBER and also a copy of

the inventory. Five (5) vhotographs of the location of the

boat when first found wil be attached to this report and

ten (10) photographs taken in the basement of the Stark

County Jail of the serial numver of the boat, serial num-

ber of the motor and the exterior of the boat.

It is to be noted that approximately 5-7 minutes after

1600 hrs., the abeve date, CHIEF PAUL KELLEY of

the Lexington Township Police Department did arrive at

the property being searched and did go into the residence

and speak with MRS. BARBER. After a couple of mi-

nutes, CHIEF PAUL KELLEY did come to the back of

the garage area, where photographs were being taken of

the boat. Idol [sic] conversation from CHIEF PAUL

KELLEY to the reporting officer, consisted of the Fire

Chief attempted for several months to find the owner of

the boat and couldn’t locate him. He then asked the

reporting officer, if I (reporting officer) had in fact located

the owner and a reply of affirmative was given to him. He

then asked if the boat was in fact stolen. I (reporting

officer) told him, in fact it was. He asked how long ago,

the boat was in fact stolen and the reporting officer did

not reply. While still taking photographs of the boat,

CHIEF PAUL KELLEY did leave the scene and went

into the residence. Several minutes later, he did come out

of the residence again and walked around where we were

looking at the boat and made very little conversation and

went back into the residence.

While searching the interior of the garage; MR. BAR-

BER who was present, stated that his wife was presently

in the house checking the records as to what year the boat

was actually recovered. A few moments later, his wife

came into the garage and stated that she checked through

3la

the year of 1973 and was unable to locate any record of a

recovered boat. Reporting officer then asked if she would

mind checking for the year of 1979 and she replied she

would. At that time, MR. LESTER BARBER stated, he

would check his records and supply the reporting officer

with the information that would have been placed on a

report at the time the boat was actually taken from the

water and taken to the Fire Department.

On Thursday, 2/11/82, the reporting officer will deliver

to the Stark County Prosecutor’s Office, copies of the

search warrant, affidavit and inventory sheets for proper

filing and will attempt to get a release order from the

Judge, so that the boat may be returned to its [sic] proper

owner and that the trailer, which the boat is presently

sitting on, can be delivered back to the DICKEN &

MARSHALL SPORTS CENTER. It is also to be noted

that a release must be provided before the proper owner

can remove the boat from the Stark County Jail, and this

release must be gotten from DICKEN & MARSHALL

SPORTS CENTER.

Attached to this report, will be copies of the search.

warrant, affidavit and inventory.

Investigation to continue.

Signature /s/ Detective William Johnson U-35

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.