# Opposition Brief — Rye v. Seattle Times Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3211%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 1087

## Text

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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
RN NII Scania tds cRinsnitashascebiitabigewanctbiadnasinnoutéesss 4
SIT EE I a re Noe SENS Ne RI 7
i i la edcasbenegniders A-1

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3211%3A2. Public record. Not legal advice.