Opposition Brief — Rye v. Seattle Times Co.

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No. 84-671

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1984

Eppie Rye, Jr. and ANDREA RyeE, his wife,

Petitioners,

VS.

THE SEATTLE TIMES COMPANY; RICK ANDERSON

and JANE DoE ANDERSON, his wife,

Respondents.

On Petition Fer‘A Writ Of Certiorari To The

Supreme Court Of The State Of Washington

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

EVAN L. SCHWAB

4200 Seattle-First National

Bank Building

Seattle, WA 98154

(206) 622-3150

Davis, WRIGHT, Topp, RiesE & JONES

Of Counsel

TABLE OF CONTENTS

Page

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SR ETE BRIG BEE UY cnsccntncaseosessencncscccnseccesesernenasene 3

REASONS WHY CERTIORARI SHOULD NOT BE

IS eA ae ne ee ee OR 4

A. Petitioner Seeks Review Only of the Application

of the Undisputed Legal Standard to the Evi-

dence Presented in the Trial Court, an Issue of

Such Narrow Import as Not to Justify Review by

Picks this sents: tichanacaiaeshindeennsiieninabtiamesianienarcs 4

B. The Decision Below Is Not in Conflict With Any

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SIT EE I a re Noe SENS Ne RI 7

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QUESTION FOR REVIEW

Where a public official defamation plaintiff's scle response

to a defense motion for summary judgment is to allege that the

defendant’s news sources may have borne some ill will toward

plaintiff, is it error to dismiss the action on the ground that such

facts do not constitute the showing of actual malice necessary to

raise a genuine issue of fact?

BEST AVAILABLE COPY

‘

TABLE OF AUTHORITIES

CASES

Bose Corp. v. Consumers Union of United States, Inc.,

U.S. ___, 104 Sup. Ct. 1949 (1984)...

Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.),

Cort. déniad, 434.3. B34. (UST) vicccsesnccecscscatserccesces

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

Govbad, 429 UB... FEO CI STG Y vosnccscasosaressrteisnsssiniconanaces

Loeb v. New Times Communications Corp., 497 F.

Supe. SS CRIS. SE e sescecsseccthcteentacthncins

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

Pritchard v. Times Southwest Broadcasting, Inc., 277

Ark. 458, 642 S.W.2d 877 (1982) ooo. ceeeeeeeeeeeee

Roberts v. Dover, 7 Media L. Rep. 2296 (M.D. Tenn.

BGIDE |) .-<cceniceescissintibenbalindiiieibiaiadva le tcaai a ann ae ae

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

Tilton v. Cowles Publishing Co., 76 Wash.2d 707, 459

P.2d 8 (1969), cert. denied, 399 U.S. 927 (1970)...

OTHER

Washington Rules of Appellate Procedure 2.3(b)(1)

4,5,6

No. 84-671

IN THE

Supreme Court of the Hnited States

OcTOBER TERM, 1984

Eppie Rye, Jr. AND ANDREA RYE, his wife,

Petitioners,

vs.

THE SEATTLE TIMES COMPANY; RICK ANDERSON

and JANE DoE ANDERSON, his wife,

Respondents.

On Petition For A Writ Of Certiorari To The

Supreme Court Of The State Of Washington

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

The respondents respectfully pray that the writ of certiorari

requested by the petitioners be denied by this Court.

STATEMENT OF THE CASE

This is an action for defamation, filed by a government

official against a local daily newspaper that reported charges of

wrongdoing within his agency. As discussed in the opinion of

the Washington Court of Appeals dismissing the case, Appen-

dix to Petition (““Pet. App.”) at A-2 to A-27, the uncon-

troverted facts are as follows.

2

When the allegedly defamatory news story was printed on

May 3, 1978, plaintiff Eddie Rye, Jr.1 was the head of a Seattle

antipoverty agency known as CAMP (Central Area Motiva-

tional Program).2 CAMP, which was primarily a conduit for

distribution of state and federal funds, had been plagued for

some time with charges of mismanagement and malfeasance

made by employees and supervising agencies. Many of these

charges had been reported in stories printed by defendant The

Seattle Times, one of the two major daily newspapers in the

Seattle area. Defendant Rick Anderson, a Seattle Times

reporter, had investigated and written a number of these stories.

In doing so he had frequently obtained information, which had

proved to be reliable, from CAMP employees Jerrold Letnes

and Mike Stillwell. See Affidavit of Anderson Jf 8-12, Appen-

dix (“Resp. App.”) at A-2 to A-3.

Shortly before May 3, 1978, Stillwell and Letnes informed

Anderson that they had gone to the FBI with a number of

charges of fraud and other illegal acts Rye had perpetrated in

his capacity as head of CAMP. Anderson then wrote and The

Seattle Times published the story at issue in this lawsuit. The

story accurately recounted the making of the charges, which

included allegations of fraud and of the demand and receipt of

kickbacks in cash and cocaine. Anderson later confirmed with

federal authorities that Stillwell and Letnes had made such

charges. See Affidavit of Anderson J 19, Resp. App. at A-4.

Rye commenced this lawsuit in the Superior Court of the

State of Washington for King County on May 5, 1978. In his

complaint he asserted libel claims against The Seattle Times

and Anderson (referred to collectively below as “The Seattle

Times”), alleging in general terms that the May 3 story was

1The spouses of both plaintiff Eddie Rye, Jr. and defendant Rick

Anderson were joined by plaintiff as parties. For convenience, Rye will be

referred to as though he were the sole plaintiff, and Anderson will be referred

to as though he were the sole individual defendant.

2 Rye has not disputed that he is a public official for the purposes of this

lawsuit. Court of Appeals Opinion, Pet. App. A-13.

3 Other than wholly-owned subsidiaries, The Seattle Times Company has

no parent companies, subsidiaries or affiliates.

4 The story is set forth in full in the Court of Appeals opinion. Pet. App.

at A-6 to A-8.

oR Ted Eh ev a

3

false and had been published by The Seattle Times with actual

malice.

After discovery, The Seattle Times filed a motion for

summary judgment on the ground that Rye could raise no

genuine issue of fact material to the essential issue of actual

malice. Rye’s response consisted of two affidavits contending,

not that The Seattle Times knew the story was false, but that

Letnes and Stillwell were hostile to Rye, that Anderson must

have known this, and that accordingly The Seattle Times

should have had serious doubts as to their veracity. Court of

Appeals Opinion, Pet. App. at A-14.

The trial court denied summary judgment on June 4, 1981,

despite the body of clear and well-reasoned authority from

courts in Washington and elsewhere holding that allegations of

a reporter’s knowledge of hostile feelings between his sources

and a defamation plaintiff are, as a matter of law, insufficient to

show actual malice. The Seattle Times petitioned the state

Court of Appeals for discretionary review of this ruling. The

Court of Appeals, finding under Washington Rules of Appel-

late Procedure 2.3(b)(1) that the Superior Court had com-

mitted an obvious error, Pet. App. at A-16, reversed the denial

of summary judgment and dismissed the case in an opinion

entered March 12, 1984. Pet. App. at A-27. Rye petitioned the

state Supreme Court for discretionary review, which petition

was denied on July 24, 1984. Pet. App. at A-i. Rye then filed

this petition for certiorari.

QUESTION FOR REVIEW

Where a public official defamation plaintiff's sole response

to a defense motion for summary judgment is to allege that the

defendant’s news sources may have borne some ill will toward

plaintiff, is it error to dismiss the action on the ground that such

facts do not constitute the showing of actual malice necessary to

raise a genuine issue of fact?

4

REASONS WHY CERTIORARI SHOULD

NOT BE GRANTED

A. Petitioner Seeks Review Only of the Application of the

Undisputed Legal Standard to the Evidence Presented in

the Trial Court, an Issue So Narrow as Not to Justify

Review by This Court on Certiorari.

The petition for certiorari frames the questions for review

so generally that it is not immediately apparent just what errors

Rye would have this court review. His argument, however,

indicates that his primary claim of error is that his allegations

concerning the hostility of Anderson’s sources were sufficient to

raise a material issue of fact under the legal standard applied

by the courts below.

The Washington appellate courts’ independent review of

the facts Rye alleged in light of the proper legal standard

certainly was appropriate under Bose Corp. v. Consumers Union

of United States, Inc., US. , 104 Sup. Ct. 1949

(1984). However, being thus confined to analysis of the

evidence offered in this particular case, the opinion below does

not present principles of wide enough application to justify

review by this court. Petitioner suggests nothing unique or

broadly applicable about this case that would make certiorari’s

additional, extraordinary level of review any more necessary or

appropriate here than in any other defamation case. Accord-

ingly, further review on a writ of certiorari is not called for.

B. The Decision Below Is Not in Conflict With Any Other

Authority.

The decision of the Court of Appeals is in complete

harmony with a well-established line of similar authorities

springing from principles recognized by this Court since Sr.

Amant v. Thompson, 390 U.S. 727 (1968), against which Rye

has not cited a single conflicting case.

In reiterating his argument in the petition for certiorari,

Rye continues to contend as he has from the beginning that his

allegations of source hostility, without more, made out a

sufficient case of actual malice to defeat summary judgment.

he dp a) A Od al OB

5

See Petition at 14-15. Even setting aside the question of

whether Rye made any adequate showing that Anderson knew

of this alleged hostility, see Court of Appeals Opinion, Pet. App.

at A-20, this argument must still fail because it completely

ignores the numerous authorities squarely holding that evidence

of a source’s hostility to the plaintiff is inadequate, standing

alone, to make out even a prima facie case of actual malice.

Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.), cert.

denied, 434 U.S. 834 (1977) (reversing judgment for the

plaintiff against publisher and dismissing action where the only

evidence of the publisher’s “actual malice” was knowledge of

its author’s animosity to plaintiff); Loeb v. New Times Commu-

nications Corp., 497 F. Supp. 85 (S.D.N.Y. 1980) (granting

summary judgment for defendant where the only evidence of

“actual malice” was plaintiffs “inherently hostile relationship”

with sources, 497 F. Supp. at 93 n.12); Kidder v. Anderson, 354

So. 2d 1306 (La.), cert. denied, 439 U.S. 829 (1978) (judg-

ment for plaintiff reversed because the trial court had focused

on the antagonism of the sources to the plaintiff, rather than on

their credibility and access to information). See also Tilton v.

Cowles Publishing Co., 76 Wash.2d 707, 723, 459 P.2d 8, 17

(1969), cert. denied, 399 U.S. 927 (1970) (reliance on sources

proper, even though the sources themselves had reason to

oppose the plaintiffs}; Pritchard v. Times Southwest Broad-

casting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982) (reporter

may rely on biased source); Roberts v. Dover, 7 Media L. Rep.

2296 (M.D. Tenn. 1981) (reporter may rely on contradicted

source ).

The rule of these cases springs from the basic principles of

modern defamation law developed in this Court’s decision in

St. Amant v. Thompson, supra. In that case, St. Amant had

allegedly defamed the plaintiff, a sheriff, by quoting statements

of a dissident Teamster member accusing the sheriff of impro-

prieties with union officials. 390 U.S. at 728-29, 733. Noting

that

reckless conduct is not measured by whether a rea-

sonably prudent man would .:ave published or would

have investigated before publishing... [t]here must

be sufficient evidence to permit the conclusion that

6

the defendant in fact entertained serious doubts as to

the truth of his publication ... [,]

390 U.S. 731, the Court found that St. Amant’s failure to make

an independent investigation of the charges, furnish proof of his

source’s veracity, or take the other steps plaintiffs suggested

should be required, was not sufficient to show recklessness

under this standard. In support of this conclusion the Court

pointed to several facts that are also present in this case,

including a prior relationship between St. Amant and his

source, and St. Amant’s verification of other aspects of his

source’s information. Most importantly for Rye’s argument

that actual malice may be inferred from a source’s hostility,

however, the Court specifically found that St. Amant’s knowl-

edge that his source

was engaged in an internal struggle in the union-

... [and] seemed to St. Amant to be placing himself

in personal danger by publicly airing the details of

the dispute

weighed against a finding of actual malice. 390 U:S. at 733.

Rye has not cited, and The Seattle Times has not found,

any case in which a source’s bias, standing alone, was held to be

sufficient evidence to make out a prima facie case of actual

malice. Such a case would be of little weight in any event, as it

would be contrary not only to the precedents just discussed but

to the practical policy balance underlying the rule of New York

Times v. Sullivan, 376 U.S. 254 (1964), as both St. Amant and

this case illustrate. First, since some degree of hostility could

always be inferred from the act of furnishing derogatory

information, if a source’s hostility were adequate evidence of

actual malice there would be evidence of actual malice when-

ever a defamatory statement was based on a source’s informa-

tion. This would clearly be an improper result under S¢.

Amant. Second, and perhaps even more importantly, even

truly disaffected and “hostile” persons will often be the best, if

not the only, sources of information concerning official mis-

conduct. Free debate will be stifled if the criticisms of such

persons can be reported only at the risk of an automatic

inference of actual malice, and thus of greatly increased

exposure to protracted libel litigation and ultimate liability

should those criticisms prove incorrect.

7

CONCLUSION

The issue raised by the petitioner in this case is limited to

the question of whether the evidence he presented in the trial

court was sufficient to meet the legal standard applied by the

trial court. This issue received the independent appellate

review prescribed by Bose Corp. v. Consumers Union in the

Washington State Court of Appeals. Further review of this

narrow issue is not called for. Furthermore, the decision below

is in harmony, not conflict, with other pertinent authorities,

including the leading decisions of this Court. Accordingly,

there is no reason for this court to grant certiorari, and the

petition should be denied.

Respectfully submitted this 17th day of November, 1984.

Davis, WRIGHT, TODD, RIESE & JONES

Attorneys for Respondents,

Seattle Times Company, Rick

Anderson and Jane Doe Anderson

By

Evan L. Schwab

A-l

APPENDIX

In THE

SUPERIOR COURT OF THE STATE OF WASHINGTON

FOR KING COUNTY

NO. 844 810

EppieE Rye, Jr. and ANDREA RYE, his wife,

Plaintiffs,

Vv.

SEATTLE TIMES COMPANY, a corporation;

RicK ANDERSON and JANE DOE ANDERSON, his wife,

Defendants.

Affidavit of Rick Anderson In Support Of

Motion For Summary Judgment

STATE OF WASHINGTON 7

COUNTY OF KING ;

The undersigned, being first duly sworn, deposes and says:

1. Iam a reporter for the Seattle Times and write a regular

column for the Seattle Times.

2. I am the reporter and the author for the May 4, 1978

article about CAMP that is the subject of this lawsuit.

3. Because of my continuing observation of the adminis-

tration of poverty programs in Seattle, I became aware of the

existence of CAMP. During the period from 1973 to 1978,

CAMP was the major anti-poverty agency operating in the

Central Area of Seattle.

4. CAMP’s job, in essence, was to funnel funds from the

federal government to a number of its own projects and other

projects outside of CAMP. Such projects included cultural

programs, Head Start and programs to provide food and social

services to the poor and disadvantaged.

i 8

A-2

5. I also became aware of the role of Eddie Rye, Jr. as

executive director of CAMP. In this role, Rye had and

exercised substantial responsibility and discretion over large

amounts of public funds. I was aware of Rye’s previous jobs as

personne! officer for the Seattle-King County Economic

Opportunity Board and from 1909-1973, as Director of

CAMP’s Educational Talent Search Project.

6. I also became aware of Eddie Rye, Jr. as a prominent

figure and community activist who thrust himself into a number

of substantial public controversies and who sought publicity

from the media for his activities. The articles attached as

exhibits to this Affidavit and incorporated herein [not repro-

duced in this Appendix] by reference are articles from the

Seattle Times that reflect Rye’s activities. These articles are

accurate copies of articles that were published in the Seattle

Times about Rye and CAMP. Other media, both newspapers

and the electronic media, also gave substantial publicity to Rye

in his activities both as executive director of CAMP and in a

number of public controversies.

7. During 1977 and 1978 there was a general and

continuous controversy about CAMP. It was fueled by public

reports that CAMP was short of funds, by investigations from

federal oversight agencies and reports of those investigations,

and by statements of employees of CAMP and individuals

within the community that CAMP served.

8. I wrote a series of articles beginning in November, 1977

about CAMP, Eddie Rye’s role at CAMP, and the difficulties

and problems facing both. These articles detailed problems

with a summer food program, irregularities in the handling and

transfer of funds within CAMP, CAMP’s shortage of funds, and

audits by agencies charged with oversight of CAMP.

9. In writing these articles I became familiar with the

general situation of CAMP and relied on information from the

oversight agencies and from sources who were or had been

employed at CAMP.

10. Two of the people I relied upon were Mike Stillwell

and Jerrold Letnes. Mike Stillwell had been head of the CAMP

Consumer Action Project for four years and a CAMP employee

A-3

for six years. The program he headed had been rated

“outstanding” by federal oversight agencies. Stillwell provided

me with reliable and accurate information for my articles

throughout 1977 and into 1978. I understood that Stillwell

provided me with this information to help clean up CAMP so

that better services would be provided to the people of the

community. I also understood that Stillwell strongly supported

CAMP and did not want to see it destroyed.

11. Jerrold Letnes had bcen a full-time employee of

CAMP from 1973 to 1976 with substantial involvement in

seeking grants for CAMP. He left CAMP to form his own

consulting firm, but continued to do some work for CAMP.

Letnes had been a member of the senior staff of CAMP and

had provided me with reliable and accurate information for

articles in 1977 and 1978. I understood that Letnes wanted to

see CAMP cleaned up, not destroyed, so that the people of the

Central Area community would be better served.

12. I knew of the positions of Stillwell and Letnes within

CAMP and their access to the information. I knew they had

given information to the public investigatory officials as well as

to other news media. No one had contradicted the information

they gave. I did not believe that Letnes or Stillwell had

personal animosity towards Rye, but believed they only wanted

to insure that public funds were used properly.

13. I had called Eddie Rye on an ongoing basis for

comments before publication of articles about CAMP and Rye.

Rye provided such comments until early 1978, but by March

1978 Rye would no longer provide me with comments. Rye

made clear to me that I should not bother calling for further

comments.

14. On 8/3/78 I had a lunch interview with Letnes and

Stillwell, their attorney, Clyde MaclIver, and KING reporter,

Don McGaffin.

15. At the lunch meeting Stillwell and Letnes described a

recent visit to the FBI where they met with an agent after being

granted immunity through the United States Attorney. Stillwell

and Letnes informed me they had given the FBI the full details

of the events of CAMP and had admitted to giving Rye kick-

A-4

backs totalling $1,100 in cash and kick-backs of cocaine.

Stillwell and Letnes stated the kick-backs were given to Rye to

insure that they would continue having jobs and that others had

witnessed some of the kick-backs. They stated they had told

the FBI that $300 in kick-backs had been given from an

increase in a special hourly consultant’s fee being performed by

T etnes. They stated they had told the FBI that $300 had been

» “en in cash to Rye in the men’s room of a Seattle cafe.

16. I believed Letnes and Stillwell were telling me the

truth. I understood they were admitting their own guilt and

were “dirtying” themselves by admitting to their participation

in such actions. After the story was published and this lawsuit

was initiated, both Stillwell and Letnes confirmed to me that

they still believed their allegations were true and that they had

transmitted those allegations to the FBI.

17. I and Don McGaffin then independently wrote and

used stories based on the information provided by Letnes and

Stillwell.

18. I neutrally and accurately reported what I believed to

be the true, objective facts that Stillwell and Letnes had made

charges to the FBI. The article of May 4, 1978 that is the

subject of the lawsuit is an accurate representation of the

charges I was told Stillwell and Letnes made. I believed

Stillwell and Letnes were telling the truth.

19. IL iater confirmed with federal authorities that Stillwell

and Letnes had made such charges.

aa /s/ RICK ANDERSO

Rick Anderson

SUBSCRIBED AND SWORN to before me this 29th day

of April, 1981.

/s/ DANIEL WAGGONER

Washington, residing at Seattle