Reply Brief — Lee Enterprises, Inc. v. Sible

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Supreme Court, U.S.

FILED

JUM 10 1987

No. 86-1638

JOSEPH ESA. oe

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

LEE ENTERPRISES, INCORPORATED, A Delaware Corporation

and DONALD SCHWENNESEN,

. Petitioners,

WARREN E. SIBLE,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Montana

PETITIONERS’ REPLY BRIEF

P. CAMERON DEVORE *

MARSHALL J. NELSON

DONALD 8S. KUNZE

DAVIS WRIGHT & JONES

2600 Century Square

1501 Fourth Avenue

Seattle, WA 98101-1688

(296) 622-3150

HAROL: \. DYE

MILODRAGOVICH, DALE & DYE, P.C.

P.O. Drawer R

Missoula, Montana 59806

(406) 728-1455

Attorneys for Petitioners

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS |

Page

DI ain ei Sia asic aniiniiiecicnndiodicaptinliniaanine 1

OT, GH TI GI svn ccc ccececsscieesnnstonerncescnee 2

SUMMARY OF ARGUMENT ..000000.00.2-0-cccececcecseeeeeee- 2

PERRET EESAINOE De Sem POD OE SIO STOTT 4

I SUMMARY REVERSAL IS APPROPRIATE

a a ia 4

Il. IF SUMMARY REVERSAL IS’ NOT

GRANTED, A WRIT OF CERTIORARI IS

ESSENTIAL AND SHOULD BE GRANTED

Pf FERS Rae me ey Se tal alee 7

Cb REE ae SELES TRERI EN Meee eteiks Ie kN SO nO OE 9

APPENDIX Transcript of Reporter’s Handwritten

BI aces sari esitincem ead ecchgueosieas (Bound separately)

TABLE OF AUTHORITIES

Cases:

Alioto v. Cowles Communications, Inc., 519 F.2d

777 (9th Cir. 1977), cert. denied, 449 U.S. 1102

RIED siniesceasrvectcrcnvesjnissntasonenianmestteleieloaae sian tbeaensiaies

Anderson v. Liberty Lobby, Inc., —— U.S. ——,

106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ............

Bose Corp. v. Consumers Union of United States,

Fink, GOD CEC eonerecncesteetateein

Burns v. McGraw-Hill Broadcasting Co., 659 P.2d

| Rt: | MC en ketenes Mim feats

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

CD snd aire nici antennae eibaeeed

Diversified Management, Inc. v. Denver Post, Inc.,

653 P.9d 1108 (Colo. 1962) .......25.2.-......;.

Gospel Army v. Los Angeles, 331 U.S. 543 (1947) ..

Kuhn v. Tribune-Republican Publishing Co., 637

Pe A COR RID Si bieniciccceidiietisnceceettn.

Manuel v. Fort Collins Newspapers, Inc., 661 P.2d

EG TAI, TID ansicicteccnnvensnsnencersciatbiatincanesienreenn

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

Be MN icc occsikcasticciniiniedsina ccpedpectebioscemniiemsabaeceianns

NAACP v. Claiborne, 458 U.S. 886 (1982) Sormeonynte han

National Socialist Party v. Village of Skokie, 432

8 Ee BS, 5 enn eM MNase nen ier oe cue Nerd

Nebraska Press Ass'n v. Stewart, 423 U.S. 1327

| ST Me NR Poe BORE SS oe NERC MS WR

Richfield Oil Corp. v. State Board, 329 US. 69

NINE sina dvsecinsdieresnceartwiibectanicienciaeaacehsish pmcaaieseeuaanaiaLie

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

Page

passim

IN THE

Punyeresee Cmut of the United States

OCTOBER TERM, 1986

No. 86-1638

LEE ENTERPRISES, INCORPORATED, A Delaware Corporation

and DONALD SCHWENNESEN,

Petitioners,

WARREN E. SIBLE,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Montana

PETITIONERS’ REPLY BRIEF

INTRODUCTION

This brief is necessary to counter three arguments-

raised in the respondent Sible’s brief in opposition: (1)

his factual argument concerning the record; (2) his ar-

gument that the Montana Supreme Court’s decision is

consistent with St. Amant v. Thompson, 390 U.S. 727

(1968); and (8) his argument that the Petition is pre-

mature because the reporter’s notes have not yet been

examined.

STATEMENT OF THE CASE

Sible’s factual arguments depend almost exclusively on

two mischaracterizations: (1) that the reporter Schwen-

nesen “purposefully” decided not to contact John Chris-

tian, even though he was “warned” and “implored” to do

so by both his source and Sible; and (2) that both Schwen-

nesen and his editor essentially admitted publication with

actual malice. Neither argument can survive examina-

tion of the record.

Sible ignores the fact the Schwennesen twice tried to

contact Christian and found that he was on vacation. Tr.

at 1850-51. Later, Schwennesen determined that it was

unnecessary to contact Christian after Sible affirmed he

had the smoker in his possession and after the sheriff

and Eckerson had confirmed other elements of Salisbury’s

story. Tr. at 672-73, 1872, 1873. ©

Sible also exaggerates how much he stressed that

Schwennesen should contact Christian at the time Schwen-

nesen was conducting his investigation. When at one

point Schwennesen asked Sible who he would recommend

Schwennesen talk to, Sible said: “I think Johnny Chris-

tian. ... But, John may not tell you anything.” Tr.

at 596. Even at trial Sible admitted he did not know

what information Christian would have provided. Tr. at

1407, 1408. Sible also recommended that Schwennesen

contact the sheriff, Tr. at 598, 600, which Schwennesen

did do several times. In fact, the record reveals that

Schwennesen had multiple corroborating bases for his

article. \

SUMMARY OF ARGUMENT

Sible’s brief is founded on three primary errors. First,

Sible attempts to capitalize on the Montana Supreme

Court’s error in viewing the facts in the light most favor-

able to Sible.1 A balanced review of the trial record,

1 Sible cites Anderson v. Liberty Lobby, Inc., —— U.S. ——, 106

S. Ct. 2505, 91 L. Ed. 2d 202 (1986), for the proposition that the

however, reveals no actual malice. That was the deter-

mination of a properly instructed jury. That also was

the determination of the one Montana Supreme Court

Justice who refused to view the record from an inten-

tionally one-sided perspective. See Concurrence of Jus-

tice Hunt in Appendix to Petition at 9a-1la. Sible’s brief

compounds the Montana Supreme Court majority’s ad-

mittedly distorted presentation of the facts by further

misconstruing testimony and taking statements out of

context.

Second, Sible attempts to reconcile the Montana Supreme

Court’s opinion with this Court’s definition of actual

malice in St. Amant v. Thompson. It is impossible, how-

ever, to evade the fact that the Montana Supreme Court

rejected jury instructions taken nearly verbatim from

St. Amant while not even acknowledging the existence

of the case.

Third, Sible makes the unsupported and erroneous as-

sertion that because Schwennesen’s notes were not part

of the original trial record, the Court would be pre-

Montana Supreme Court correctly viewed all the evidence in a light

most favorable to Sible rather than making a balanced independent

review of the record on the issue of actual malice. Respondent’s

Brief at 9-10. There are two flaws in Sible’s argument. First, the

standard articulated in Liberty Lobby was in the context of sum-

mary judgment, not review of a jury verdict. This Court has

clearly distinguished those contexts. Liberty Lobby stated: “At the

summary judgment stage, the judge’s function is not himself to

weigh the evidence but to determine whether there is a genuine

issue for trial.” 91 L. Ed. 2d at 212. In contrast, the Court stated in

Bose Corp. v. Consumers Union of United States, Inc., that a court

reviewing a jury verdict on the issue of actual malice is to “exercise

independent judgment and determine whether the record establishes

actual malice with convincing clarity.” 466 U.S. 485, 514 (1984).

The second flaw in Sible’s argument is that if the Montana Supreme

Court had applied the standard Sible advocates, it should have

viewed the facts in the light most favorable to Lee Enterprises and

Schwennesen, not Sible, since Sible was the losing party at trial and

the moving party on appeal to the Montana Supreme Court.

mature in granting either summary reversal or certio-

rari. Schwennesen’s notes have been made available in

response to a request for production, and the Court may

properly review them in making its determination of the

finality of the Montana Supreme Court’s decision. A

transcript of those handwritten notes is being filed with

this brief as an Appendix.? The Court can see for itself

that there is nothing in the notes that could justify the

burden and expense of yet another trial, and nothing that

poses an obstacle to summary reversal. In any event,

the Court repeatedly has found state court decisions ripe

for review where they threaten First Amendment rights

despite ongoing lower court proceedings. Even if sum-

mary reversal is not granted, well-established precedent

justifies granting certiorari without awaiting , further

proceedings in the state courts.

ARGUMENT

I. SUMMARY REVERSAL IS APPROPRIATE IN

THIS CASE.

Contrary to Sible’s contention* and the Montana Su-

preme Court’s decision, the jury was properly instructed

on the issue of actual malice. Both Jury Instructions 12

2 On March 30, 1987, Sible propounded interrogatories, requesting

information regarding Schwennesen’s notes. Schwennesen agreed

on May 1, 1987 to produce those notes in response to an appropriate

request for production and protective order. Because Schwennesen

kept notes chronologically and not separately for each story, the

Appendix omits interspersed notes concerning other stories. The

Appendix has been bound separately to insure that only the Court

and the parties have access to the notes to protect possible privacy

concerns of individuals named therein.

3 Sible claims at page 12 of his brief that the jury instructions

did not set forth “the definition of actual malice, which is simply

publishing a known falsehood or recklessly disregarding the truth.”

This charge is patently false. Jury Instruction 11 stated that the

plaintiff must prove that the article “was published with malice,

that is, with knowledge~that it was false, or with a reckless dis-

regard of the truth.” Appendix to Petition at 5a.

and 13 were taken virtually verbatim from St. Amant v.

Thompson, 390 U.S. 727, 731 (1968). See Appendix to

Petition at 5a-6a. Nevertheless, the Montana Supreme

Court characterized those instructions as “fatally defec-

tive” without even mentioning St. Amant. See id. at 6a.

Amazingly, Sible claims those instructions confused the

jury on the correct legal standard and were actually con-

trary to St. Amant. See Respondent’s Brief at 14. The

jury was fully instructed by Jury Instruction 13 that

they need not believe the reporter’s subjective state-

ments but could find actual malice if the story was pub-

lished “despite obvious reasons to doubt the veracity of

the informant upon whom the article was based, or to

doubt the accuracy of his reports.” Appendix to Petition

at 6a. Based on the evidence at trial, the jury deter-

mined there were no obvious reasons for Schwennesen to

doubt the veracity of Salisbury’s story.

It cannot be overstressed that the Montana Supreme

Court conceded that, under the instructions given, the

jury could have found “there was no actual malice be-

cause The Missoulian did not entertain serious doubts

about the actual truth of the statement.” Appendix to

Petition at 7a. It is even more significant that the Mon-

tana Supreme Court came to that conclusion after view-

ing the evidence in a light most favorable to Sible. Jd.

at 2a.

A fortiori, had the Montana Supreme Court made a

truly independent review as required by Bose* rather

than its one-sided review in favor of Sible, and had it

applied the proper legal standard under St. Amant, it

would have upheld the jury’s finding of no actual malice.

Sible argues that Alioto v. Cowles Communications,

Inc., 519 F.2d 777 (9th Cir. 1977), cert. denied, 449

U.S. 1102 (1981), bolsters his contention that the jury

instructions were erroneous in this case. See Respond-

4 See supra note 1.

ent’s Brief at 14. To the contrary, the Alioto court

quoted St. Amant for the very same actual malice stand-

ard rejected by the Montana Supreme Court. 519 F.2d

at 779 (“The defendant must be proved to have subjec-

tively ‘entertained serious doubts about the truth of his

publication.’ ”’).

Sible also argues that the Colorado Supreme Court in

Kuhn v. Tribune-Republican Publishing Co., 637 P.2d

315 (Colo. 1981), found actual malice on facts “akin to

the facts of Sible’s case.” Respondent’s Brief at n.6.

This case and the Colorado case are, in fact, quite dis-

parate. Specifically, the Colorado Court found actual

malice only where (1) the reporter “admitted that he

had no basis for most of his erroneous statements;” and

“(2) “he failed to take time to corroborate allegations

made in the articles;” and (3) he failed “to pursue the

most obvious sources of possible corroboration or refuta-

tion.” Kuhn, 637 P.2d at 319 (emphasis added).® In

addition, the Kuhn court was upholding a jury finding

of actual malice.

By contrast, Schwennesen had multiple corroborating

bases for his statements, including Sible’s own admission

that he had the allegedly stolen property in his posses-

sion,.and Schwennesen did pursue multiple sources to

verify the allegations made by Salisbury. After con-

sidering all the evidence, the jury in this case found no

actual malice. |

5 A later Colorado case distinguished Kuhn and found no actual

malice where the evidence did not show that the reporter actually

fabricated facts. Manuel v. Fort Collins Newspapers, Inc., 661 P.2d

289, 291 (Colo. App. 1982). A subsequent Colorado Supreme Court

case followed Kuhn in finding actual malice, but again only where

the Court was upholding a jury finding and the reporter “testified

that she had no basis for the use of the defamatory language... .”

Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1362 (Colo.

1983) (emphasis added). It should be noted as well that the Colo-

rado Supreme Court later cited Kuhn in approving a jury instruc-

tion almost identical to Jury Instruction 12 rejected by the Montana

7 7

The fact that Schwennesen’s notes were not part of the

original record should not prevent this Court from sum-

marily reversing the Montana Supreme Court. Those

notes have been produced in response to a discovery re-

quest and are available for the Court to review.* The

Court will see for itself that nothing in those notes shows

that Schwennesen entertained serious doubts as to the

truth of the article. Since Bose requires a reviewing

court to make an independent review of the evidence on

actual malice, the Court can summarily reverse the Mon-

tana Supreme Court and avoid unnecessary relitigation

of the case. Schwennesen’s notes reveal that they do not

warrant the burden and expense of a new trial.

Il. IF SUMMARY REVERSAL IS NOT GRANTED, A

‘WRIT OF C&RTIORARI IS ESSENTIAL AND

SHOULD BE GRANTED AT THIS TIME.

In order to review a decision of a state court, this

Court must first determine that the decision is final. 28

U.S.C. § 1257. In Cox Broadcasting Corp. v. Cohn, the

Court recognized four categories of cases that it will

treat as final without awaiting completion of additional

proceedings in state courts. 420 U.S. 469 (1975). In

Supreme Court. See Diversified Management, Inc. v. Denver Post,

Inc., 653 P.2d 1103, 1109 (Colo. 1982) (also citing St. Amant).

6 As discussed in the following section of the brief, the Court

must decide whether the Montana Supreme Court decision is final

for purposes of review. In making that determination, the Court

may examine “both the judgment and the opinion as well as other

circumstances which may be pertinent ....” Gospel Army v. Los

Angeles, 331 U.S. 548, 548 (1947). It is well settled that “other

circumstances” include relevant matters both within and outside

the original record. E.g., Richfield Oil Corp. v. State Board, 329

U.S. 69, 72 (1946). Therefore, the Schwennesen notes, which were

not part of the original trial record but which now have been

produced, are reviewable by the Court.

describing the fourth category, the Court stated it would

review cases

where the federal issue has been fully decided in

the state courts with further proceedings pending in

which the party seeking the review here might pre-

vail on the merits on nonfederal grounds, thus ren-

dering unnecessary review of the federal issue by

this Court and where reversal of the state court on

the federal issue would be preclusive of any further

litigation on the relevant cause of action.... In

these circumstances, if a refusal immediately to re-

view the state decision might seriously erode federal

policy, the Court has entertained and decided the

federal issue, which itself has been finally deter-

mined by the state court for purposes of state liti-

gation.

Id. at 482-83.

The Court has identified the First Amendment as one

of the key federal policies it seeks to protect by asserting

“category four” review. In Cox Broadcasting, the Court

held that a Georgia Supreme Court decision was final

despite ongoing lower court proceedings where the Geor-

gia Supreme Court decision would have left the local

press in an “uneasy and unsettled constitutional posture”

harmful to the operation of a free press if the Court de-

layed its review. 420 U.S. at 485-86.

A similar unsettled constitutional posture will result if

the Court delays review of the Montana Supreme Court’s

decision. That decision stands as a summary reversal of

St. Amant, leaving the Montana courts, including the

court on remand, with a Hobson’s choice of whether to

disregard the prior mandate of this Court or to disregard

the clear order of the Montana Supreme Court. It also

presents the Montana press with the same untenable

dilemma and significantly restricts the operation of a

free press.

In Miami Herald Publishing Co. v. Tornillo, the Court

held that a Florida Supreme Court decision remanding a

ease for further proceedings under a state “right of

reply” statute was final for purposes of review. 418 U.S.

241 (1974). The statute required the press to give equal

space to any political candidates it criticized. The Court

stated:

Whichever way we were to-decide on the merits,

it would be intolerable to leave unanswered, under

these circumstances, an important question of free-

dom of the press under the First Amendment; an

uneasy and unsettled constitutional posture of [the

Florida statute] could only further harm the opera-

tion of a free press.

Id. at 246-47 & n.6."

It is equally harmful to the operation of a free press

in the State of Montana to leave unanswered the impor-

tant First Amendment question raised by the Montana

Supreme Court’s rejection of the St. Amant standard of

actual malice in this case.

CONCLUSION

This case is ripe for the Court’s review. Clear prece-

dent establishes that the Montana Supreme Court deci-

sion is final for purposes of review.

Nothing prevents the Court from summarily reversing

the Montana Supreme Court. Even that court acknowl-

edges that under the legal standard of actual malice

articulated by this Court, the jury was justified in find-

ing no actual malice. The reporter’s notes have been

7 See also NAACP v. Claiborne, 458 U.S. 886, 907 n.2 (1982)

(free speech); National Socialist Party v. Village of Skokie, 432

U.S. 48, 44 (1977) (free speech) ; Nebraska Press Ass’n v. Stewart,

423 U.S. 1327, 1328 (1975) (Blackmun, J., sitting as Circvit Jus-

tice) (free press).

made available in response to a discovery request and are

properly reviewable by the Court. In making its inde-

pendent review of the evidence, including those notes, the

Court can determine for itself that there is no clear and

convincing proof of actual malice. By summarily revers-

ing the Montana Supreme Court, the Court will prevent

unnecessary relitigation of this case under an erroneous

legal standard imposed by the Montana Supreme Court.

Even if the Court does not grant summary reversal,

the Montana Supreme Court’s decision is final for pur-

poses of granting certiorari. The Court has readily

granted certiorari in similar cases in which a state court

decision seriously infringed First Amendment rights.

Petitioners respectfully urge this Court to act imme-

diately to relieve the Montana press and lower courts of

the dilemma created by the Montana Supreme Court’s

summary reversal of the St. Amant rule.

Respectfully submitted,