Opposition Brief — Reed v. Karper

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No. 87-287

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In The

Supreme Court of the United States

October Term, 1987

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STEPHEN R. REED,

Petitioner,

JACK R. KARPER,

Respondent.

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BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

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JosePpH A. Kern, Esquire

JosepH A. Kuern, P.C.

118 Market Street, Fifth Floor

P.O. Box 1152

Harrisburg, PA 17108-1152

(717) 233-0132

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

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TABLE OF CONTENTS

Page

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BeBe bes CO RTT iin iccsssieessesasieiscsocnsennnene il

COUNTER-STATEMENT OF THE CASE ww... 1

REASONS FOR DENYING THE WRIT ....0 ww. 8

I The State Court Decision Below is in Con-

formity with Applicable Decisions of this

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CONCLUSION

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TABLE OF AUTHORITIES

CASES

Bose Corp. v. Consimers Union of United States,

}

104 S. Ct. 1949 (1984) .

Corabi uv. Curtis Publishing Co.. 441 Pa. 482, 273

A.2d 899 (1971)

Herbert v. Lando, 441 U.S. 1953 (1979) .......

Rosenbloom v. Metromedia, 403 U.S. 29 (1971)

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

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

Page

ae 8

COUNTER-STATEMENT OF THE CASE

The case sub judice arises out of highly publicized

public comments and written statements made by Peti-

tioner Reed relating to alleged criminal conduct of Re-

spondent Karper during the time period between Novem-

ber 5 and November 10, 1981, including a Petition filed by

Reed in the Court of Common Pleas of Dauphin County

seeking to enjoin alleged criminal conduct on the part of

Karper, copies of which Petition were then publicly dis-

tributed and commented on by Reed (R. 127a, 711a-724a).

The initial press conference was convened by Reed on

November 5, 1981, at a time when he was the unofficial and

uncertified winner of a municipal election for the office of

Mayor of the City of Harrisburg (R. 87a, 106a-109a). At

that time, Reed called for an investigation of the City’s

Publie Works Department where Karper served as Deputy

Director and was charged with the management of the

municipal steam-generating plant, more commonly known

as the ‘‘incinerator’’ (R. 107a, 30la, 71la-716a). At that

press conference, Reed released a letter sent by him to

the District Attorney of Dauphin County and a captain of

the Pennsylvania State Police, in which he alleged that

certain officials within the Pnblic Works Department may

have taken kickbacks in exchange for contracts with that

Department and might have benefited from bidding and

non-bidding arrangements in the capacity as a ‘‘silent

partner’? of a local construction company (R. 107a-108a).

In addition, Reed contended that City-owned equipment

and personnel within the Publie Works Department had

been utilized for private and non-municipal purposes and

that ‘‘zhost’? employees were hired and payrolls padded

and that bids for municipal contracts were rigged on di-

reet orders from administrative personnel within the De-

partment of Public Works (R. 108a-109a, 711la-716a).

Reed further alleged that suspicious fires had oceurred

at several municipal facilities accompanied by the filing

of false reports with the municipal police department and

fraudulent claims which were allegedly sent to insurance

companies which provided coverage for these facilities

(R. 110a, 711a-716a).

Finally, Reed charged that an attempt was made to

bribe the city policeman who was investigating the al-

leged arson and that it was possible that an arson ring

may exist within the Public Works Department (R. 110a,

T1lla-7i6a). The above statements appeared in the No-

vember 4, 1981 edition of the Harrisburg The Patriot

newspaper as well as on local television stations in Harris-

burg and Laneaster (R. 711la-716a).

The press conferences were convened by Reed and

the letters sent by him to the District Attorney and State

Police captain were passed out to the media at Reed’s

direction (R. 113a-116a).

On November 6, 1981, Reed filed a Petition for a Pre-

liminary Injunction with the Court of Common Pleas of

Dauphin County alleging iter alia that Karper was re-

moving municipal records from the incinerator facility

on November 5, 1981, in eonjunction with his daughter

and an unidentified third person for the purpose of con-

cealing and destroying the same and withholding them

from the possession of the City of Harrisburg and that

] :

these records were essential to the investigation of cor-

3

ruption within the Department of Public Works (R. 254a,

725a-735a).

Based on the allegations contained in the aforesaid

petition, a preliminary injunction was granted against

Karper and others through an ex parte order by the Hon-

orable John C. Dowling (R. 254a, 725a-727a).

Immediately following the issuance of the ex parte pre-

liminary injunction, Reed again held a press conference in

which he stated the purpose of seeking the injunction was

to **freeze and protect these records which were extreme-

ly important to City government and that these records,

which involve payroll, contracts and bidding information,

should remain intact for any investigation conducted into

b

the previously-cited criminal activities’’, and that ‘‘Kar-

per is the motivating factor in why we done what we have’’

(R. 120a, 121a, 123a-126a, 717a-718a).

At the same time, however, Reed went on to say that

he didn’t know the exact nature of the files which were

allegedly being removed by the Plaintiff and his daughter,

but that Karper was still acting as superintendent of the

incinerator plant and that it ‘‘seems suspect’? that he would

have so hastily removed his personal belongings (R. 124a,

717a-718a).

Reed concluded that the major reason he made the

announcement was to make it more difficult for anyone

to destroy records and to indieate that ‘‘we’re interested

in receiving information about such misconduct’? (R. 124a,

125a, 717a-718a).

Reed’s comments, as aforesaid, were published in the

Saturday, November 7th edition of the Harrisburg The

Patriot newspaper (R. 119a-120a, 717a-718a).

4

At the hearing held before the Honorable John C.

Dowling for issuance of a preliminary injunction on Mon-

day, November 9, 1981, Ricky Snyder, on whose affidavit

Reed had based his petition, testified that he had seen

two women moving boxes from Volkswagen automobiles

into Karper’s vehicle, but that he had not seen Karper

at the scene, nor had he viewed him moving any boxes

(R. 403a-404a).

Snyder went on to testify that ‘‘I told Mr. Reed that

three cars were involved and the unidentified woman, and

that’s in fact what I said to him’’, and denied telling Reed

that Karper was moving files (R. 404a). ‘‘If I had seen

Jack Karper I would have said Jack Karper’’. (R. 405a).

Reed admitted at the preliminary injunction hearing

that he had only one conversation with Snyder in the two

years preceding that hearing (R. 417a).

Reed admitted that he had no personal knowledge as

to what, if any, records were allegedly removed by Karper

and that he had drafted the affidavit which was subse-

quently executed the following day by Snyder (R. 417a-

418a).

The following testimony was given by Reed at the

preliminary injunction hearing relating to his recollection

of what he eategorized as a ‘‘20-minutes conversation’’

which led him to draft the Snyder affidavit, and was read

into the record in the trial of the case sub judice:

‘*All three people whose cars were involved were also

involved in the removal of files. It is entirely pos-

sible that was my misimpression and that’s the way

it was written... My primary questioning with Mr.

Snyder over the telephone was over the content of the

boxes since that is the essence of this entire proceed-

ing, in my judgment anyway.”’ (R. 418a-419a).

In response to the following question by Karper’s

counsel, ‘‘You went ahead and signed an affidavit to the

petition setting forth that Respondent Karper, meaning

Jack Karper, removed City records from the Vehicle

Maintenance Center, did you not?’’, Reed replied, ‘‘We

can certainly amend that, as apparently counsel had sug-

gested prior to this hearing. I wasn’t present for that

prehearing conference.’’ (R. 419a).

It should be noted that the affidavit drafted by Reed

for execution by Snyder did not refer to any of the items

allegedly being removed by Karper or the two women as

either belonging to the City of Harrisburg or containing

any identification relating to the same (R. 734a-735a).

Joseph K. Pierce, Esquire, who represented Reed in

the equity action against Karper, testified on the morn-

ing of and preceding the preliminary injunction hearing

on November 9, 1981, he had advised Reed that Snyder

had notified him [Pierce] that there was a discrepaney

in his affidavit with regard to the presence of Karper

when waterial was allegedly being carried out of the build-

ing (Ri. “25a-626a).

Yierce testified that prior to drafting the preliminary

injunction complaint, Reed had advised him that he had

information from reliable sources other than Snyder about

records being removed and on that basis he had formed

the belief that in faet City records were being removed to

keep them from the possession of the municipality (R.

629a-631a).

Although Reed testified at the trial in the lower court

that he had received telephone calls from two individuals

prior to his conversation with Snyder indicating that ree-

ords were being removed from the vehicle maintenance

eenter, he did not know who they were and, in fact, could

no longer recall their names (R. 499a-631a).

Reed subsequently referred to these two alleged tele-

phone informants as being ‘‘eye-witnesses’’ whose ‘‘state-

ments’’ were the basis for executing the affidavit required

to file the petition for the preliminary injunction and al-

legation that ‘‘records’’ were being removed, but later

modified his testimony to the effect that these witnesses

never stated that records were being removed, but rather

‘‘suggested’’ the same (R. 459a-463a).

Reed later characterized the alleged phone calls from

the two unidentified persons ‘‘as being worthless as far

as testimony is coneerned’’ and testified that he relied

only on Snyder’s statement (R.523a-524a).

Insofar as Reed’s allegations at press conferences re-

lating to alleged criminal activity of the Department of

Public Works, including arson, theft, use of public equip

ment for private use, payroll padding, ete., he stated that

any information he had received with reference to these

allegations was of no better quality than that which he

received from Snyder (R.511a-512a).

Despite his characterization of his conversation with

Snyder and the two unidentified callers, Reed signed an

affidavit in support of this petition for the preliminary

injunction which set forth that he had ‘reliable informa

tion that City employees (emphasis added) saw records,

documents, papers, contracts, bids, filings, ete. being re

moved from the custody, control and ownership of the

City for the sole purpose of having these records per-

manently destroyed, hidden or otherwise removed from

the City’s custody, control and ownership’’ (R. 727a-735a).

The affidavit that Reed formulated for execution by

Snyder did not contain any reference to ‘City files’? (R.

476a, 477a, T34a-735a).

Reed testified that he relied on the advice of counsel

(Joseph K. Pierce, Esquire and William R. Balaban, Es-

quire) in filing the petition for preliminary injunction,

but that Mr. Balaban stated he never thought Reed had

much of a chance at prevailing in that action (R. 516a-

D17a).

Prior to the preliminary injunction hearing, Reed in-

formed news reporters from the Harrisburg HLvenimg

News that he was seeking the injunction to put the ‘‘fear

of God’? into those individuals who might remove official

records—‘it happened so often and can happen so easily’’.

(R. 162a, 728a).

Subsequent to Judge Dowling’s dismissal of said peti-

tion, Reed informed the media that he did what he ‘‘be-

lieved neeessary’’ after receiving reports that records

were being removed and that while the injunction was not

vranted ‘*we have sent a clear message’’ that actions in

Harrisburg City Hall during the next two months, until

he was to take office, would be carefully reviewed (R. 134a,

721a-(22a).

Reed further admitted that he had, on several ocea-

sions prior to November 5, 1981, made allegations of

criminal misconduct relating to Karper to the Pennsylvania

State Police (R. 466a).

8

Reed acknowledged that his allegations that Karper

removed municipal records could be a violation of the

Pennsylvania Crimes Code and that certainly the destrue-

tion or removal or tampering or misuse of publie records,

as set forth in his petition for a preliminary injunction,

was a Violation of the Pennsylvania Criminal Codes. (R.

464a-465a).

Despite Petitioner’s reference in its Statement of the

Case to federal grand jury investigations and allegations

of illegal bid procedures by Respondent, no testimony was

produced at the trial of this cause linking Respondent to

any improper, let alone, illegal activities and the City Con-

troller, a member of Petitioner’s political party testified

that he approved all invoices in question.

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Vv

REASONS FOR DENYING THE WRIT

I. The State Court Decision Below is in Conformity

with Applicable Decisions of this Court.

A petitioner, not content with a thrice told tale, now

seeks yet another review by this Court of a determination

made by three state courts that the question of petitioner’s

actual malice was appropriately submitted to a jury for

its determination.

This Court in what must have been a prescient vision

of petitioner’s position in the case sub judice, held in St.

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

the defendant in a defamation action brought by a

public official cannot, however, antomatically insure

a favorable verdict by testifying that he published

with a belief that the statements were true. The find-

er of fact must determine whether the publication was

indeed made in good faith. Professions of good faith

will be unlikely to prove persuasive, for example,

where a story is fabricated by the defendant, is a

product of his imagination, or is based wholly on an

unverified anonymous telephone call.

Id. at 732.

Petitioner now challenges the findings of these three

courts that there was constitutionally sufficient evidence

establishing actual malice with regard to his published

statements to submit the same to a jury and contends that

based exclusively upon his self-contradictory testimony

(which was rebutted not only by his purported affiant,

Snyder, but by his own attorney, Pierce), a verdict should

have been directed in his favor.

The trial court appropriately held:

There was ample evidence about the defendant’s con-

duct and about the pertinent circumstances prior to

and at the time that the alleged defamatory statements

were made from which the jury could well determine

Mr. Reed’s intentions and could assess the knowledge

that he had. There being evidence from which the

jury could determine that Mr. Reed acted with malice,

and considering that the court charged the jury on

this issue satisfactory to Mr. Reed, the issue was

properly for the jury.

Petition for a Writ of Certiorari, p. 17a.

The Superior Court of the Commonwealth of Pennsyl-

vania noted:

The record contains a statement by Snyder that he did

not see Karper moving records and that if he had seen

Jack Karper, ‘he would have said Jack Narper’. Reed,

in turn, admitted that Suyder was the only one upon

whom he relied stating that until his conversation with

10

Snyder ‘there was nothing really to go on’. Further,

despite the lack of specific information from Snyder,

Reed stated in his sworn court petition that the re-

moved material included contracts, bids and filings.

Our careful review of the record leads us to conclude

that Reed acted with at least reckless disregard of

falsity and with actual malice as to the allegations

against Karper. We conclude that the evidence met

constitutional standards and is clear and convincing.

Petition for Writ of Certiorari, pp. 9a, 10a.

Neither the trial court nor the Superior Court dele-

vated its constitutional responsibility for independent re-

view of the evidence to the triers of fact, but specifically

found the evidence to be legally sufficient to withstand a

motion for a directed verdict.

Petitioner confuses the trial court’s obligation to de-

termine whether there is clear and convincing evidence ot

‘‘actual malice’? as the same has been defined by this

Court prior to submitting the case to a jury with some il-

lusory duty to first specify the same in written form be-

fore allowing the jury to deliberate this issue. There sim-

ply is no authority for this novel proposition nor does Pe-

titioner endeavor to conjure the same.

The Supreme Court of Pennsylvania in Cerabi ev,

Curtis Publishing Co., 441 Pa. 482, 273 A.2d 899 (1971)

held that the trial court must ‘‘review the evidence ad-

duced to determine its sufficiency to warrant submission

of the case to the jury without impairing the Defendant’s

constitutional rights.’?’ Jd. at 911-12.

What Petitioner seeks in actuality is to have this Court

eviscerate the role of a jury by reassessing the credibility

11

of witnesses who testified at trial, and in so doing, mis-

reads this Court’s holding in Bose Corp. v. Consumers

Union of United States, 104 S.Ct. 1949 (1984).

This Court stated: ‘‘We have repeatedly held that

the Rule means what it says... It surely does not stretch

the language of the Rule to characterize an inquiry into

what a person knew at a given point in time as a question

‘fact’.’’ Id. at p. 1958.

In footnote 15, which immediately follows the above

quote, the Court in Bose, supra, at p. 1958, states: ‘‘In-

deed, in llerbert v. Lando, 441 U.S. 1953... we referred

in passing to actual malice as ‘ultimate fact’.’’

In Rosenbloom v. Metromedia, 403 U.S. 29 (1971),

this Court held that interpreting the standard of malice

in a case involving a public figure and a media defendant:

That standard requires only that the plaintiff prove

knowing or reckless falsity. That burden, and no

more, is the plaintiff’s whether ‘public official’, ‘pub-

lie figure’ or ‘little man’, It may be that jury instrue-

tions that are couched only in terms of knowing or

reckless falsity, and omit reference to ‘actual malice’

would further a proper application in the Vew York

Times standard to the evidence.

Id. at 52.

Although Reed is clearly a non-media defendant he

has nevertheless been afforded on three occasions an

independent examination of the evidence on the question

of actual malice and there is more than clear and convine-

ing evidence of the same. Time, Inc. v. Pape, 401 U.S. 279

(1971).

It is Petitioner’s own testimony which establishes the

clear and convincing evidence of ‘tactual malice’? and

12

deprives him under even the most stringent review of the

right to be awarded a directed verdict.

Reed, despite admitting to Snyder’s inability to de-

scribe what documents he saw in Karper’s car on that

fateful day (let alone Karper’s presence at that time),

nonetheless executed an affidavit stating that the same

contained ‘‘contracts, bids, or filings’? which he alleged

were being removed by respondent with the intent to de-

stroy them and keep them from the City’s custody.

This conscious distortion of a conversation with a

casual acquaintance does not constitute ‘fone of the number

of possible rational interpretations’? of an event ‘‘that

bristled with ambiguities and descriptive challenges for

the writer’’ as in Bose, supra, at p. 1966 nor are Peti-

tioner’s totally groundless allegations of criminal conduct

by Respondent worthy of being given constitutional

‘‘breathing space’’. /d. at 1966.

~

~

CONCLUSION

For all of the foregoing reasons, the judgment of the

Supreme Court of Pennsylvania should not be reviewed

by this Court and Petitioner’s Writ for Certiorari should

be denied.

Respectfully submitted,

JosepH A. Krier, Esquire

Joserpu A, Kier, P.C.

118 Market Strect, Fifth Floor

P.O. Box 1152

Harrisburg, PA) 17108-1152

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Attorney for Respondent