Opposition Brief — Gould v. Alleco, Inc.

Office . $y

Preme C

FEB 1995

ALEXANDER | Steves

ERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

JEFFREY K. SMITH,

Petitioner,

VS.

GEORGE P. RUSSELL,

Respondent,

No. 84-924

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

ELIHU H. BERMAN

KRUG, BERMAN & SILVERMAN

P.O. BOX 6801

1525 S. Belcher Road

Clearwater, Florida 33518

Counsel for Respondent

CN

Sw

INDEX

i re bade en hese bitubeseeees i-vii

GREE TON BPORORERR: once cccsvenscsccccescess viii

Constitutional and statutory

SPOVTEIONG. SRUDTVOGs ccc cc ccccccccsecess viii

SURSUMINC OF GD GUGRi a 6 is dé cdcesscsesess vViii-xii

Reasons why the writ should be

denied..... eT TTCTICT TT Te pedesececceseesa 1

1. The Decision Below Is in Harmony

with the Decisions of this Court, The

Supreme Court of Florida and the Courts of

Other States as to whether a Police Officer

41S. GB PHUVIS CET IG ION ic oc dei ce deus veh weed ¥obsee 1

2. The Question in The Argument of

the Petitioner Is, Not Only Unimportant,

but also, It Would Be Unduly Cumbersome For

This Court To Entertain The Question Found

In the Petitioner's Argument.....eecceeeeceeeeel3

3. The Decision Below does Not Meet

the Requirement Nor the Exception to

Finality. Therefore This Court Does Not

Have Jurisdiction to Grant a Writ of

CORT OE Eo b05 450 0646 00d5.050000 00 bd eb woh ORO ees 14

Ce a ee ee eS ee F

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

JEFFREY K. SMITH,

Petitioner,

VS.

GEORGE P. RUSSELL,

Respondent,

No. 84-924

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

The respondent George P. Russell,

respectfully requests that this Court deny the

petition for writ of certiorari seeking review of

the Florida Supreme Court opinion in this case. |

That opinion is reported at 456 So.2d 462 (Fla.

1984).

CITED AUTHORITIES

CASES

United States Supreme Court: Page

Cox Broadcasting Corp. v. Cohn, 420 re

U.S. 469 (1975). 16

Gertz v. Robert Welch, Inc., 418 5

U.S. 323 (1974).

Henry v. Collins, 380 U.S. 356 (1956). 6

Houston v. Moore, 16 U.S. 433 (1815). 15

Hutchinson v. Proxmire, 443 U.S.111 5

(1979).

New York Times Co. v. Sullivan, 376 viii, x, 1

U.S. 254 (1964). 8,

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

St. Amant v. Thompson, 390 U.S. 727 ae

{1908).

Time Inc. v. Pape, 401 U.S. 279 (1971). 7

Urie v. Thompson, 337 U.S. 163 (1949). 15

Federal Courts of Appeal:

Gray v. Udevitz, 656 F.2d 588 (10th 9, 10

Cir. 1987). 13

Meiners v. Morianty, 563 F.2d 343 (7th 8

Cir. 19/77)

(ii)

CASES

Miscellaneous:

Akins v. Altus Newspapers, Inc., 609 P.2d

1263 (Ok 1977), cert. denied, 449 U.S.

a.

1010 (1980).

Ammerman v. Hubbard Broadcasting, Inc., 91

W.M. 250, 572 P.2d 1258 (Ct.App. 1977) cert.

denied, 91 .N.M. 249 572 P.2d 1257 (1977)

cert. denied, 436 U.S. 906 (1978).

Angelo v. Brenner, 84 111.App.3d 594, 40

Th Dec 377, 406 N.E.2d 38 (1980).

Ashton v. Commonwealth, 405 S.W.2d 562 (Ky.

T5965) rev'd on other grounds, 384 U.S. 195

(1966).

Axelrod v. Califano, 357 So.2d 1028 (Fla.

Tst DCA 1978).

Bishop v. Wometco Enterprises, Inc., 235 So.

2d 755 (FI 3d D.C.A S70) cert. denied,

a. * s aa

240 So.2d 813 (Fla. 1970).

Brophy v. Philadelphia Newspapers, Inc., 281

Pa. Super. 588, 422 A.2d B25 CTOROY. :

Cason v. Baskin, 159 Fla. 31, 30 So.2d 635

(1947).

Cibenko v. Worth Publishers, Inc., 510

F.Supp. /61 (N.J. 1981).

Cline v. Brown, 24 N.C.App. 209, 201 S.E.2d

cert. denied, 286 N.C. 412, 211.

S.E.2d 793 (1975).

(iii)

Page

<

Miscellaneous Cases (Continued) Page

Colombo v. Times-Argus Assn., 135 Utah 454, 7

380 A.2d 80 (1977).

Corbett v. Register Publishing Co., 33 Conn. 7

Supp.4, 356 A.2d 4/72 (Conn. Super.Ct. 1975).

Coursey v. Greater Niles Township . a i

Publishing Corp., 40 IT1.2d 257, 239 12

N.E.2d 837 (1968).

Delia v. Berkey, 41 Md.App. 47, 395 A.2d 9

, atf'd., 287 Md. 302, 413 A.2d

170 (1980).

Dellinger v. Belk, 34 N.C.App. 488, 238 S.E. i)

2d 788 (1977), cert. denied, 294 N.C. 182,

241, S.E.2d 517 (1978).

Dunlap v. Philadelphia Newspapers, Inc., 301 a

Pa.Super. 475, 448 A.2d 6 CTOBZy-

Foster v. Upchurch, 624 S.W. 2d 564 (Tex. 6

1981).

Gomes v. Fried, 136 Cal.App.3d 924, 186 Cal. 9

Rptr. 605 (Cal. Ist Dist. 1982).

Goolsby v. Wilson, 146 Ga.App.288, 246 S.E. 6

2d 371 (1078).

Hansen v. Stoll, 130 Ariz. 454, 636 P.2d 8

1236 (Ct.App. 1981). (Ariz.Ct.App. 1981).

Harrison v. Williams, 430 So.2d 585, (Fla. Q

ath DCA 1983).

(iv)

Miscellaneous Cases (Continued)

Hart v. Playboy Enterprises, Inc., 5 Med.L.

Rptr. T8TT Kan. Toyo}.

Hines v. Florida Publishing Company, 7 Med.

C.Rptr. 2605 (Fla. 4th Sud Cirtt. 1982).

Hirman v. Rogers, 257 N.W.2d 563 (Minn.

S77).

Hoag v. Clegg, 5 Med.L.Rptr. 1732 (Mich.Cir.

es

Jurkowski v. Crawley, 637 P.2d 56 (Okla.

T98T).

Kenneth v. Barber, 159 Fla. 81, 31 So.2d 44

a.

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

T978), cert. denied, 439 U.S. 829 (1978).

La Rocca v. New York News, Inc., 156 N.J.

Super. 59, 383 A.2d 457 (N.J.App.Div. 1978).

Lewis v. Evans, 406 So.2d 489, (Fla. 2d

Mahnke v. Northwest Publications, Inc., 280

inn, . W. :

Malerba v. ee Inc., 64 App.Div.2d 623,

. e e > e d Dept. 1978).

roeeeney v. Des Moines Register & Tribune

Lo., 7 . \ Owa 1976).

(v)

Miscellaneous Cases (Continued) Page

McClain v. Arnold, 275 S.C. 282, 270 S.E.2d -

124 (T1980).

Moriarity v. Lippe, 162 Conn. 371, 294 9, 10

NAACP v. Moody, 350 So.2d 1365 (Miss. 1977). 8

Orr v. Lynch, 60 App.Div.2d 949, 401 N.Y.S. 9

2d 697 (3d Dept. 1978), aff'd, 45 N.Y.2d

903, 411 N.Y.S.2d 10, 383 N.E.2d 562 (1978).

Ramacciotti v. Zinn, 550 S.W.2d 217 (Mo.Ct. 7

App. 1977).

Rawlins v. Hutchinson Publishing Co., 218 Q

Kan. 205, 543 P.2d 988 (1975).

Roberts v. Dover, 525 F.Supp. 987 (M.D.Tenn. 8

1987).

Roche v. Egan, 433 A.2d 757 (Me. 1981). ae

sia 1

Romero v. Abbeville Broadcasting Service, 7

420 So.2d 1247 (La.App. 1982).

Rosales v. City of Eloy, 122 Ariz, 134, 593 7

P.2d 688 (Ct.App. 573}

Rowden v. Amick, 446 S.W.2d 849 (Mo.App. 9,11

T969).

Russell v. Smith, 434 So.2d 342 (Fla. 2d xii

DCA 1983).

Russell v. Smith, 456 So.2d 462 (Fla. ix-xi

T984).

(vi)

Miscellaneous Cases (Continued) Page

Scelfo v. Rutgers University, 116 N.Y. 9, 10

Super. 403, oR R.2d 445 1391).

soyeoer v. A.S. Abell Company, 557 F.Supp. 7,9

Shafer v. Lamar Publishing Co., 621 S.W.2d ce)

7U9 (Mo.App. 1981).

State excel. Clyatt v. Hocker, 39 Fla. 477, 4

Z2 So./2).

Thuma v. Hearst Corp., 340 F.Supp. 867 7

TMd. 1972).

Torres v. Playboy Enterprises, Inc., 235 8

So.2d 759 TS a D.Ca. T1970, cert. denied,

240 So.2d 813 (Fla. 1970).

Wardlow v. City of Miami, 372 So.2d 976 2

(Fla. 3d DCA EDF

Weber v. Woods, 37 111.App.3d 122, 334 N.E. 9

West v. New York Tarot News, 5.Med.L.Rptr. 6

up. . ”

White v. Fletcher, 90 So.2d 129 (Fla. zo 3, §

T3956).

Willis v. Perry, 10 Med.L.Rptr. 1217, (Colo. a

pp-

(vii)

OTHER AUTHORITY

Libel and Slander: Who is a Public

Utficial or Otherwise Within the Federal

Constitutional Rule Requirin Public

Officials to Show Actual Malice TS A.L.R.

and Supp.

BOOKS AND TREATISES

R. L. Stern & E. Gressman, Supreme Court

Practices (5th ed. 1976).

C. A. Wright, Law of Federal Courts (3d

ed. 1976).

(viii-a)

Page

15

15, 16

QUESTION PRESENTED

Whether this Court should grant this

writ of certiorari to determine how far down

among the ranks of government employees the

public official dtesignation extends for purposes

of the New York Times Co. v. Sullivan rule and to

otherwise specify the categories of persons who

would or would not be included.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves a question relevant

to United States Constitutional Amendment I;

United States Constitutional Amendment XIV; 28

U.S.C. Section 1257(3).

STATEMENT OF THE CASE

On September 13, 1984, the Florida

Supreme Court issued its opinion in the case sub f

(viii)

RE ee a eT Te

judice. Respondent believes that the statement

of facts as set out in Petitioner's brief is

inaccurate and prejudicial in that certain facts

are exaggerated. Because the opinion concisely

sets forth the facts, portions of that opinion

are repeated below:

"Respondent Russell, the defendant, was

arrested for driving while intoxicated (DWI) by

petitioner/plaintiff Smith, a City of St.

Petersburg police officer. At the time of his

arrest and later to the judge when he pleaded

nolo contender to the DWI charge, the defendant

complained about the arrest procedure and the

plaintiff's use of unnecessary force. Both the

judge and plaintiff suggested to the defendant

that he register a complaint with the chief of

police.

"The defendant wrote three letters

detailing his complaints about the plaintiff, one

or more of which were sent to the police chief,

the traffic court judge, the plaintiff,

(ix)

defendant's attorney, and Judge Shingler a

friend of the defendant. The plaintiff

subsequently was passed over for promotion and

sued the defendant for defamation.

"At trial the defendant requested jury

instructions that the plaintiff, as a police

officer, was a public official as a matter of

law, and that criticism of a public official

relating to his official conduct was actionable

only upon a showing of actual malice under New

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

The trial court refused, but did instruct the

jury to consider the applicability of a privilege

under the common interest or duty regarding the

subject matter to comment to another with a

corresponding interest or duty. See, e.g., Lewis

v. Evans, 406 So. 2 489 (Fla. 2d DCA 1981):

Axelrod v. Califano, 357 So. 2d 1028 (Fla. Ist

DCA 1978). The jury found for the plaintiff, t

. awarding compensatory and punitive damages.

"The defendant appealed, claiming the

(x)

iaiciaeeeneeiaannmaiiiiaaiiiliila

trial court erred in refusing to instruct the

jury on the qualified privilege to criticize a

public official who in order to recover ffor

defamation must establish that a defamatory

communication about him was made with actual

malice or reckless disregard for the truth."

"The plaintiff argues that refusal to

instruct on the public official privilege was

harmless error in that a finding of malice was

implicit in the jury's punitive damage award;

thus, even had the public official instruction

been given, the jury's finding of malice would

have defeated the privilege. The district court

disagreed, finding that "[t]he ‘common interest’

instruction left the jury free to consider the

case as if no qualified privilege existed,

whereas the ‘public official’ instruction would

have bound the jury to give consideration to a

qualified privilege." Smith, 434 So. 2d at 344.

We approve the district court's decision. A

police officer qualifies as a public official as

(xi)

defined in Rosenblatt v. Baer, 383 U.S. 75,

85-86, (1966)."

On September 13, 1984, the Florida

Supreme Court approved the decision of the Second

District Court of Appeal and the decision of the

appellate court which reversed and remanded the

case for new trial. Russell v. Smith, 434 So. 2d

342.

(xii)

REASONS WHY THE WRIT SHOULD BE DENIED

1. The decision below is in harmony

with the decisions of the court, the Supreme

Court of Florida and courts of other states as to

whether a police officer is a public official.

New York Times v. Sullivan and its

progeny have held in an unbroken line of

decisions that police officers are "public

officials".! Petitioner offers in response to

this unanimous and overwhelming body of precedent

only the erroneous argument that the rationale of

New York Times v. Sullivan does not support these

holdings. In fact, as shown below, all courts

which have considered the issue have held all

police officers, of whatever rank or title, to be

I. While most of these decisions appear to

involve only the press, it has been clear since

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

T that the citizen is equally protected. As the

Supreme Court noted in Sullivan, "we sustain the

contentions of all the petitioners under the

First Amendment's guarantees of freedom of speech

and of the press." Id. at 265.

| thle eeaennll

“public officials" because police play a unique

and critical role in the maintenance of this

society. Police directly wield extraordinary and

virtually unsupervised governmental power over

the public at large. For this reason public

debate about the conduct of police must be "wide-

open and robust". Only application of the actual

malice rule can secure such’ freedom of

expression.

Courts Have Universally Found Law Enforcement

Libel Plaintiffs To Be "Public Officials"

Long before the United States Supreme

Court constitutionalized the law of defamation

the Florida Supreme Court determined that police

officers are “public officials” under the Florida

common law of libel. White v. Fletcher, 90 So.2d

129 (Fla. 1956); see also Wardlow v. City of

Miami, 372 So.2d 976, 979 n4 (Fla. 3d D. C. A.

1979). Florida courts created a qualified

privilege al’owing members of the public to

freely comment on the actions of _ public

officials. The Florida Supreme Court has held:

",eeany one who seeks public employment or

public office or who makes his living by

dealing with the’ public or otherwise seeks

public patronage, submits his private

character to the scrutiny of those whose

patronage he implores, and that they may

determine whether it squares with such a

standard of integrity and correct morals

as warrants their approval.”

>

Kennett v. Barber, 159 Fla. 81,83, 31 So.2d 44,46

(1947).

This early case became the cornerstone

for the Florida Supreme Court decision that

held a uniformed policeman is a public official:

White v. Fletcher, supra. Here, the plaintiff

was a police officer for the City of Orlando,

who received much public attention because he

was a witness in the prosecution of a_ prostitute

in whose activities he was allegedly involved.

The court based its decision on the following

“SS?

rationale:

"The uniformed policeman, therefore, was

certainly subject to fair comment § and

criticism from any member of the public of

the City of Orlando. The generally accepted

rule is that “public officials" or "public

men" are subject to such fair comment.

Cason v. Baskin, 159 Fla. 31, 30 So.2d 635.

This court has said a person whose duty it

is to perform agency for the State is a

"public officer," and that a person in the

service of the government who derives his

position from duly authorized election or

appointment is a public officer. State ex

rel. Clyatt v. Hocker, 39 Fla. 477, 22 So.

721. there could be little doubt that a

policeman, then, is a "public: officer."

White v. Fletcher, 90 So. 2d 129 at 13)

(trla. 1956).

Thus, in tlarge measure Florida

anticipated the development of the federal

constitutional protection that has been afforded

speech about public officials in the 20 years

since New York Times v. Sullivan.

In New York Times v. Sullivan, the

United States Supreme Court constitutionalized

libel law by holding a “public official" may not

recover damages for a “defamatory falsehood

relating to his official conduct unless he proves

that the statement was made with ‘actual malice’

- that is, with knowledge that it was false or

with reckless disregard of whether it was false

or not." Id. at 279-80. In explicating the New

York Times v. Sullivan standard, the Supreme

Court has held the public official must show with

"clear and convincing proof," Gertz v. Robert

Welch, Inc., 418 U.S. 323, 342 (1974), "that the

defendant in fact entertained serious doubts as

to the truth of his publication." St. Amant v.

Thompson, 390 U.S. 727, 731 (1968).

Although not every person on government

payroll is a public official, Hutchinson v.

Proxmire, 443 U.S. 111, 119 n.8 (1979), "every

court that has faced the issue has decided that

an officer of law enforcement, from ordinary

patrolman to Chief of Police, is a ‘public

official’ within the meaning of federal

constitutional law." Roche v. Egan, 433 A.2d

757, 762 (Me. 1981); see generally, Libel and

Slander: Who Is A Public Official Or Otherwise

Within The Federal Constitutional Rule Requiring

Public Officials To Show Actual Malice, 19 A.L.R.

3d 1361 Section 5(d) (1968) and Supp.1983).

Law enforcement personnel of every rank

and description have been held to be ‘public

officials’ for libel purposes, including wardens

or prisons,’ chiefs of police,* sheriffs,* deputy

2. West v. New York Daily News, 5 Med. L. Rptr.

1269 (N.Y. Sup. Ct. 1979) (arden at the Brooklyn

House of Detention conceded he was a public

official).

3. Jurkowski v. Crawley, 637 P.2d 56 (Okla.

1981); Brophy v. Philadelphia Newspapers, Inc.,

281 Pa. Super. 588, 4227 A 5G 625 ALOE Goolsby

v. Wilson, 146 Ga. App. 288, 246 S.E.

; Henry v. Collins, 380 U.S. 356 (1965);

Ashton v. Commonwealth, 405 S.W.2d 562 (Ky.

1965), rev'd. on other grounds, 384 U.S. 195

(1966); Kidder v. Anderson, 354 So.2d 1306 (La.

1978), cert. denied, 439 U.S. 829 (1978).

4. Foster v. Upchurch, 624 S.W.2d 564 (Tex.

1981); Hoag v. Clegg, 5 Med.L. Rptr. 1732 (Mich.

Cir. Ct. oth sides stipulated that

plaintiff was a public official).

sheriffs,? deputy chiefs of detectives,® police

captains,’ sergeants ,® detectives,’ federal drug

5. Romero v. Abbeville Broadcasting Service, 420

So.2d 1247 (La. App. 1982); Ammerman v. Hubbard

Broadcasting, Inc., 91N.M. 250, 572 P.2d 1258

(Ct. App. 1877} cert. denied, ~1 N.M. 249, 572

P.2d 1257 (1977), cert. denied, 436 U.S. 906

(1978); Hirman_v. Rogers, 257 W.W.2d 563 (Minn.

1977); Cline v. Brown, 24 N.C. App. 209, 201

S.E.2d 446 (T1974), cért. denied, 286 N.C. 412,

211 S.E.2d 793 (1975); St. Amant v. Thompson, 390

U.S. 727 (1968).

6. Time Inc. v. Pape, 401 U.S. 279 (1971).

7. McCarney v. Des Moines Register & Tribune

Co., 239 NW 152 (Towa 1976) court implicitly

found plaintiff to be a public official; Thuma v.

Hearst Corp., 340 F.Supp. 867 (Md. 1972); Mahnke

Vv. Northwest Publications, Inc., 280 Minn. 328,

8. Seymour v. A.S. Abell Company, 557 F.Supp.

951 (Nd. T5983); Rosales v. City of Eloy, 122

Ariz. 134, 593 P.2d 668 (Ct. App. 1379);

Ramacciotti v. Zinn, 550 S.W.2d 217 (Mo.Ct. App.

1977); Corbett v. Register Publishing Co., 33

Conn.Supp. 4.

alt tts

9. Roche v. Egan, 433 A.2d 757 (Me. 1981);

| Colombo v. Times-Argus Assn., 135 Vt. 454, 380

) K.2d 80 (1977).

st ceeaeeieaneincianaall

agents, 1° federal customs inspectors, /+ state

highway patrolmen, !4 and city investigators. />

JO. Hansen v. Stoll, 130 Ariz. 454, 636 P.2d

1236 (Ct.App. 1981); Hart v. Playboy Enterprises,

Inc., 5 Med.L. Rptr.TSTT (D.Kan. 1375): Netners

v. Moriarty, 563 F.2d 343 (7th Cir. 1977).

11. Torres v. Playboy Enterprises, Inc., 7 Med.

L.Rptr. TT82 (S.D-Tex. TS8U).

12. Roberts v. Dover, 525 F.Supp. 987 (M.D.Tenn.

1981); NAACP v. Moody, 350 So.2d 1365 (Miss.

1977).

13. Bishop v. Wometco Enterprises, Inc., So.2d

759 (Fla. » cert. denied, So.2d

813 (Fla. 1970).

More important still, the state and

federal courts have uniformly found that police

patrolmen are public officials.!4

‘

,

14- Harrison ve Wiillams, 430 So.2d 585 (Fila. 4th DCA 1983);

Hines ve Florida Publishing Co-, 7 Medel. Rtr. 2605 (Fla. 4th

Jude Cire Cte 1982); Willis ve Perry, 10 Med. Le Rptre. 1217

(ColoeApp. 1983); Seymour ve. Ae Se Abel! Company, 557 F.Supp.

95! (De. Md. 1983); Gomes ve Fried, 136 Cale App.e3d 924, 186

Cale Rptr. 605 (ist Dist. 1982); Dunlap ve Philadelphia

Newspapers, ince, 350! Pae Super. 475, 448 A.2d 6 (1982); Gray

Ve Udevitz, 656 Fe2d 588 (10th Cir. 1981); Clbenko ve Worth

Publishers, ince, 510 Fs Suppe 76! (NeJe 1981); Shafer v-

Lamar Publishing Coe, 621 SeWe2d 709 (Mos App. 1981); McClain

ve Arnold, 275 SeCe 2862, 270 SeE«2d 124 (1980); Angelo v-

Brenner, 84 I1l. Appe3d 594, 40 I11-Dec 337, 406 NeE«2d 38

(1980); La Rocca ve New York News, Ince, 156 NeJe Super. 59,

383 Ae2d 451 (App. Dive 1978); Malerba v. Newsday, Ince, 64

Appe Dive2d 623, 406 NeYeSe2d 5352 (2d Dept. 1978); Orr ve

Lynch, 60 Apps Dive2d 949, 401 NeYeSe2d 897 (3d Dept. 1978),

off'd., 45 NeYe2d 905, 4/11 NeYeSe2d 10, 383, NeE-2d 562

(1978); Delle v. Berkey, 4! Md.App. 47, 395 Ae2d 1189 (1978),

atf'de, 287 Md. 302, 413 Ae2d 170 (1980); Akins ve Altus

Newspapers, inc., 609 P.2d 1263 (Oklae 1977), cert. denied,

449 U.S. 1010 (1980); De! | Inger ve Belk, 34 NeCeApp. 288, 238,

S.E+2d 788 (1977), cert. denied, 294 NeC. 182, 241 S-E.2d 517

(1978); Weber ve. Woods, 31 ite Appe3d 122, 334 NeEo2d 857

(1975); Rewlins ve Hutchison Publishing Co., 218 Kane 295,

543 P.2d 988 (1975); Moriarty ve Lippe, 162 Conn. S71, 294

Ae2d 326 (1972); Rowden ve Amick, 446 SeW-2d 849 (Moe App.

1969); Coursey v- Greater Niles Township Publishing Corp., 40

Itle2d 257, 239 NeEo2d 8357 (1968); Scelfo ve Rutgers

University, !16 NeJe Supers 403, 282 Ae2d 445 (1971).

10

These courts hold that patrolmen

“perform governmental duties directly related to

the public interest and have or appear to have

substantial responsibility for or control over

the conduct of governmental affairs," Scelfo v.

Rutgers University, 116 N.Y. Super.403, 282 A.2d

445 at 449 (1971), and their position "has such

apparent importance that the public has an

independent interest in the qualifications and

performance of the person who holds it, beyond

the general public interest in the qualifications

and performance of all government employees.”

Gray v. Udevitz, 656 F.2d 588 (10th Cir. 1981).

“Although a comparably low-ranking

government office, a patrolman's office, if

abused, has great potential for social harm."

Moriarty v. Lippe, 162 Conn. 371 294 A.2d 326 at

330 (1975). <A police officer investigates

crimes, makes arrests, and is “vested with

substantial responsibility for the safety and

ae ae

11

welfare of the citizenry in areas impinging most

directly and intimately on daily living: the

home, the place of work and of recreation, the

sidewalks and streets." Roche v. Egan, supra at

762. The nature and extent of the responsibility

of a police officer “is punctuated by the fact

that a firearm, no less than a badge, comes with

his office." Id. As a Missouri court correctly

pointed out for the 250 families residing in the

village of Lake Tapawingo the actions’ and

activities of their local police "were probably

of more direct concern....that were the doings of

the Director of the F.B.I." Rowden v. Amick,

supra at 8857.

In Coursey v. Greater Niles Township

Publishing Corp., supra, a patrolman on a

municipal police force brought suit against a

local newspaper alleging he had been defamed. In

concluding that a patrolman is a_ public offical

ws raat. aes

under federal constitutional law the Illinois

12

Supreme Court held that:

"Although as a patrolman he is ‘the lowest

in rank of police officials’ and would have

slight voice in setting departmental policies,

his duties are peculiarly ‘governmental’ in

character and highly charged with the public

interest. It is indisputable that law

enforcement is a primary function of 10cal

government and that the public has a far greater

interest in the qualifications and conduct of law

enforcement officers, even at, .and perhaps

especially at, an ‘on the street’ level than in

the qualifications and conduct of other

comparable low-ranking government employees

performing more proprietary functions. The abuse

of a patrolman's office can have great

potentiality for social harm; hence, public

discussion and public criticism directed towards

the performance of that office cannot

constitutionally be inhibited by threat of

prosecution under State libel laws."

239 N.E.2d at 841.

Similarly, the Tenth Circuit Court of

Appeal explained why a patrolman in Rock Springs,

Wyoming must be regarded as a public official:

The cop on the beat is the member of the

department who is most visible to the

public. He possesses both the authority and

the ability to exercise force. Misuse of

his authority can result in significant

deprivation of constitutional rights and

personal freedoms, not to mention bodily

t

:

:

;

:

:

:

;

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:

:

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injury and financial loss. The strong

public interest in ensuring open discussion

and criticism of his qualifications and

performance warrant the conclusion that he

is a public official.

Gray v. Udevitz, 656F.2d 588, 591 (10th Cir.

1981).

Seldom is precedent on a single issue

so extensive and uniform. Since the case sub

judice offers no real or important issues

different from the cases discussed above, it does

not merit the ear of this Court.

2. It would be unduly cumbersome for this

Court to entertain the question found in the

Petitioner s Argument.

Petitioner's Argument centers upon the

following proposal:

The court should grant this writ of

certiorari to determine how far down among

the ranks of government employees the public

official designation extends for the

purposes of the New York Times Co. v.

Sullivan rule and to otherwise specify the

categories of persons who would or would not

be inciuded. (Petitioner's brief pp. iii,

and 14).

14

In order for this court to meet the

objective of this proposal, it would have to

examine a myriad of government jobs. In its

analysis, the court would have to evaluate

thousands of jobs from the most sophisticated to

the most ministerial. Such an endeavor would

include employees such as F.B.I. Agents, C.1.A.,

janitors, nuclear power plant administrators and

judicial publishers. Such a task is, not only,

burdensome for this court, but also, unnecessary

at this time. The decision below turns on its

own facts and affects few if any other litigants.

3. The decision below does not meet the

requirements nor the except to _ finality.

Therefore, this Court does not have jurisdiction

to grant a writ of certiorari. '

Upon examining federal statutes

regarding the jurisdiction of the Supreme Court,

it is evident that the case sub judice does not

onevenes

15

meet the statutory requirements of 28 U.S.C.

Section 1257, i.e. finality. Strict construction

of this statute along with cases that interpret

it dictate that "[rJeview can only be had of

"final judgments or decrees." !>

However, in recent years the Court has

departed!® from its strict interpretation of the

jurisdictional statute, 28 U.S.C. 1257(3), in Cox

Broadcasting Corp. v. Cohn, !7 the court explained

the limited exceptions for which it would hear

cases when finality was questionable, by saying:

15. C.A. Wright, Law of the Federal Courts (3d

ed. 1976), p. 537, and R.L. Stern & E. Gressman,

Supreme Court Practices (5th ed. 1976) _ pp.

177-183. See also the following line of cases

which held that a judgment or decree of the

highest court of state reversing an _ inferior

court and specifically remanding the case to the

lower court for a new trial is not a final

judgment, and hence is not reviewable by the

United States Supreme Court. Houston v. Moore,

16 U.S. 433 (1815); Urie v. Thompson, 337 U.S.

163 (1949).

16. Law of Federal Courts, supra pp.539-540.

17. 420 U.S. 469.

tial

16

"those situations where the federal issue

has been finally decided in the state courts

with further proceedings pending in which

the party seeking review here might prevail

on the merits on nonfederal grounds, thus

rendering 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 rather than

merely controlling the nature and character

of, or determining the admissibility of

evidence in, the state proceedings still to

come. In these circumstances, if a refusal

immediately to review the state court

decision might seriously erode federal

policy, the Court has entertained and

decided the federal issue, wnich itself has

been Tinally determined by the state courts

for purposes of the state litigation."

(emphasis added).

420 U.S. 46 at 482-483.

Although this case may fall into the

same category as Cox, supra, it does not merit

this Court's audience since it does not

"seriously erode federal policy.”

18. Law of Federal Courts, supra pp.539-540.

CONCLUSION

For these reasons, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

/ KRUG, BERMAN & SILVERMAN

1525 South Belcher Road

P. 0. Box 6801

Clearwater, FL 33518

Council for the Respondent

CERTIFICATE OF SERVICE

I hereby certify that on this / day

of February, 1985, three copies 0 the

Respondent's Brief In Opposition of the Petition

for Writ cf Certiorari were mailed, postage

prepaid, to Joseph M. Ciarciaglino, Jr., Esquire;

of Osborne & Ciarciaglino, 433 Fourth Street

North, St. Petersburg, Florida 33701, counsel

for the Petitioner. Further, I certify that all

parties required to be serviced have been served.

eS

Council for the Respondent

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