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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 881

## Text

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,
V.

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

i

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

il

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 ¥ Op

Q. Did you tell Larry Schock you were going to take your case
to the Grand Jury?

A. Yes.

25

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.

26

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.

27

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

la

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,
v.

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.

2a

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,
V.

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-

3a

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.

4a

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.

~

oa

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.

6a

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

7a

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:

8a

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:

9a

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,
We
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,
v.

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
Ve
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,
ws
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3143%3A1. Public record. Not legal advice.