Opposition Brief — Perez v. Scripps-Howard Broadcasting Co.

IN THE , CLERK

Supreme Court of the United States

October Term, 1987

ROBERT PEREZ,

Petitioner,

vs.

SCRIPPS-HOWARD BROADCASTING

COMPANY, et ai.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

To THE SUPREME COURT OF OHIO

RESPONDENTS’ BRIEF IN OPPOSITION

Louis A. COLOMBO,

Counsel of Record

CHARLES E. JARRETT

BaKER & HOSTETLER

3200 National City Center

Cleveland, Ohio 44114

(216) 621-0200

Attorneys for Respondents

Scripps-Howard Broadcasting Company

and William Younkin

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

e

I.

COUNTERSTATEMENT OF THE

QUESTION PRESENTED

Should this Court review a decision of the Ohio

Supreme Court when the only question presented by

Petitioner is whether the Ohio Supreme Court

misinterpreted the Ohio Constitution and the Ohio Rules

of Civil Procedure?

II.

STATEMENT OF CORPORATE AFFILIATION

Scripps-Howard Broadcasting Company is a partially

owned subsidiary of Scripps Howard, Inc., which is a

wholly owned subsidiary of The E.W. Scripps Company.

Affiliated companies of Scripps-Howard Broadcasting

Company or its parent companies are: John P. Scripps

Newspapers; Birmingham Post Company; CH

Corporation; Cincinnati Post & Kentucky Post; Collier

County Publishing Company; The Courier Company; The

Denver Publishing Company; Evansville Courier

Company, Inc.; Force V Corporation; Herald-Post

Publishing Company; Knoxville News-Sentinel Company;

Memphis Publishing Company; New Mexico State

Tribune Company; Albuquerque Publishing Company;

Pittsburgh Press Company; The San Juan Star

Company; Stuart News Company; Sun-Tattler Company;

United Media Enterprises, Inc.; United Feature

Syndicate, Inc.; Newspaper Enterprise Association, Inc.;

United Media Ventures, Inc.; TV Data, Inc.; Radix, Inc.;

Dataway, Inc.; George R. Hall, Inc.; Hall Systems, Inc.;

L-R Cable, Inc.; EWS Cable, Inc.; The Scripps Howard

Foundation.

Ill.

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE QUESTION

ES ean: bh k 0.965 40.0064 56050 cedeee I

STATEMENT OF CORPORATE AFFILIATION... II

EE EEE ov ccc ccc ccnsccccesees III

EE RRO OMED oon cs esc cccccssccees IV

JURISDICTIONAL STATEMENT .............. 2

ns cor c hasan Aw ae ces seceseceeas 2

STAgmeemrs Ge Fe CASE .... 2.2... 2c cenees 3

REASONS FOR DENYING THE WRIT

I. PETITIONER FAILED TO RAISE OR

PRESERVE THE PURPORTED

CONSTITUTIONAL ISSUE

REGARDING THE RIGHT TO A JURY

TRIAL AND OPEN ACCESS TO THE

COURTS WHICH HE HAS ASKED

THIS COURT TO REVIEW ............ -

Il. PETITIONER HAS FAILED TO

ESTABLISH JURISDICTION IN THIS

COURT OR ANY BASIS’ FOR

DISCRETIONARY REVIEW BY THIS

Ill. THE DECISION OF THE OHIO

| SUPREME COURT REQUIRES NO

REVIEW BECAUSE IT PLAINLY

REFLECTS THAT THE COURT

CORRECTLY APPLIED WELL-

ESTABLISHED PRINCIPLES OF OHIO

AND CONSTITUTIONAL LAW TO THE

SPECIFIC FACTS OF THIS CASE...... 12

| GOPICEMIBIONN. 55. cen e ccc cc ccccccesece ccs: 16

ll

IV.

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

EE PC A rrr er ee ee Pe 8,13,15

Beck v. Ohio, 379 U.S. 89 (1964) ...........0ceees 8

Beckley Newspapers Corp. v. Hanks, 389 U.S. 81

ERIS REPS PLS GP ae 7 a Aa oP ag Oy aoe 14

Bose Corp. v. Consumers Union, 466 U.S. 485, reh’g

Gamad, GET UG. TET AGRE, 0c oc ic cc canasscscs 12

Bukky v. Painesville Telegraph & Lake Geauga

Printing Co., 68 Ohio St. 2d 45, 428 N.E.2d 405

Me aera ry eer t rien rpemigrs etre ara ane 12

Dupler v. Mansfield Journal Co., 64 Ohio St. 2d 116,

413 N.E.2d 1187 (1980), cert. denied, 452 U.S. 962

ET Sa ok oa hase War oak cerek PERO eee eee eo 12

Exxon Corp. v. Eagerton, 462 U.S. 176 (1983)...... 9

Garrison v. Louisiana, 379 U.S. 64 (1964).......... 13

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).... 12

Herbert v. Lando, 441 U.S. 153 (1979)............ 12,13

Hill v. California, 401 U.S. 797 (1971) ............. 9

Hortonville Joint School Dist. No. 1 v. Hortonville

Educ. Ass’n, 426 U.S. 482 (1976) ............... 10

Internationai Longshoremen’s Ass’n, AFL-CIO uv.

EE, SIG Ue ho ke we tetedeneesees 10

St. Amant v. Thompson, 390 U.S. 727 (1968)....... 13

Scott v. News Herald, 25 Ohio St. 3d 243, 496

Pee EE ono 5 3 4 NaS ka hos pawn eee 12

State ex rel. Donahey v. Edmondson, 89 Ohio St. 93

od cas ape re he eee kes tab eee ed ae kk 8

Street v. New York, 394 U.S. 576 (1969)........... 9

Time, Inc. v. Pape, 401 U.S. 279, reh’g denied, 401

Se ee SEES 3 aS we tu kes eee a aoe Oke eee ed 14

United States v. Johnston, 268 U.S. 220 (1925)..... 15

¥.

Constitutional Provision

Art. I, $16 Ohio Constitution .................... 8

Rules

Ee ee rere Serr 2,10

Rule 17, Supreme Court Rules................... 11

Rule 21(h), Supreme Court Rules................. 9

Rule 1(B), Ohio Supreme Court Rules ............. 2,8

Rule 56, Ohio Rules of Civil Procedure.......... €,13,14

No. 87-2025

IN THE

Supreme Court of the United States

October Term, 1987

ROBERT PEREZ,

Petitioner,

vs.

SCRIPPS-HOWARD BROADCASTING

COMPANY, et al,

Respondents.

On PETITION FOR WRIT OF CERTIORARI

To THE SUPREME COURT OF OHIO

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents Scripps-Howard Broadcasting

Company and William Younkin respectfully request that

this Court deny the Petition for Writ of Certiorari,

seeking review of the decision of the Supreme Court of

Ohio in this case. That opinion is reported at 35 Ohio St. ~

3d 215 (1988).

2

JURISDICTIONAL STATEMENT

Respondents submit that this Court’s jurisdiction is

improperly invoked under 28 U.S.C. §$1257(3) because

Petitioner has raised no title, right, privilege or

immunity set up or claimed under the Constitution,

treaties or statutes of, or commission held or authority

exercised under, the United States.

RULE INVOLVED

OHIO SUPREME CourRT RULES

Rule 1. Supreme Court Opinions

(A) All opinions of the Supreme Court shall be

reported in the Ohio Official Reports.

(B) The syllabus of a Supreme Court Opinion states

the controlling point or points of law decided in and

necessarily arising from the facts of the specific case

before the Court for adjudication.

(C} In a per curiam opinion of the Supreme Court,

the point or points of law decided in the case are

contained within the text of each per curiam opinion and

are those necessarily arising from the facts of the

specific case before the Court for adjudication.

3

STATEMENT OF THE CASE

A. Summary of Procedural History.

Petitioner filed this case in the Court of Cormmon

Pleas of Stark County, Ohio on October 31, 1980,

claiming that he had been defamed by several broadcasts

by Respondents. Because of the highly politicized nature

of the case, each of the Stark County Common Pleas

judges recused himself, and the mater was assigned to a

visiting judge from outside the county. Folowing

appropriate discovery, Respondents sought and the trial

court granted summary judgment. Petitioner's

opposition to Respondents’ Motion for Summary

Judgment addressed only one of the several broadcasts

he had previously objected to, namely the broadcast that

featured certain charges made by one Edward Ferren.

Although the Petition for Writ of Certiorari refers to at

least sever? broadcasts, Petitioner has never pursued any

claim regarding any of the other broadcasts during this

litigation.

The decision of the trial judge granting Respondents’

Motion for Summary Judgment (Petitioner's Appendix

at A37-A40) was clear and straightforward and

accurately stated Ohio defamation law. However, the

three-judge panel of the local Court of Appeals for Stark

County reversed the trial court’s decision in an opinion

that was replete with the court’s own speculation about

matters not contained in the Record. The appellate

court’s opinion also reflects a garbled and inaccurate

concept of the law of actual malice, which focuses on

such irrelevant and speculative issues as “possible”

editing of the videotape;' rehearsing of statements before

‘The claim in the Petition that there was ‘‘an unusual amount of

cutting and piecing of the story” (Petition at 17) is emphatically not

true. There is no Record reference to that claim because there is

nothing in the Record to support it.

4

videotaping; the presence of other people during the

taping; what the interests of those other persons might

be; and what political allegiance Respondent Younkin

might have. The opinion of the Court of Appeals never

focuses on the attitude of Respondents toward the truth

of the broadcast.

The Ohio Supreme Court in a clear and well-reasoned

opinion reinstated the trial court’s judgment and soundly

rejected each of the confused theories of actual malice

that appeared in the decision of the Court of Appeals.

Petitioner, having enlisted the assistance of new

counsel, has now petitioned for review in this Court of an

issue never raised by him in any of the courts below.

B. Statement of Facts.

The broadcast at issue in this case was one of a

series of reports about questionable activities in Stark

County government. The lawsuit was filed only days

before the 1980 Stark County Sheriff’s election, and

about two weeks after the filing of a similar lawsuit by

another Stark County Sheriff’s Department official.

Reporter William Younkin, who prepared the

broadcasts, had been investigating activities in Stark

County for several months before this report aired (R.

243). Younkin was introduced to his principal source for

this report, Edward Ferren, through a Stark County

Deputy Sheriff who had been a reliable source of

information for him in previous reports (R. 248). When

they met, Ferren told Younkin that Petitioner Robert

Perez, a captain in the Sheriff's Department, had

proposed that he sell drugs, not as an undercover agent,

but simply as a salesman for Perez (R. 275-277). Ferren

told Younkin this twice on videotape. The transcript of

5

the videotaped interview is crystal clear that Ferren

understood that he had been solicited to sell drugs

illegally on behalf of Perez.’

Younkin tested Ferren’s motivation by asking why

he was willing to talk to him about this. Ferren said that

it was not right that the police could do this sort of

thing, while ordinary people who did would be in jail.

Although Ferren feared for his personal safety, he said

that he had decided to talk to Respondents because he

felt they had demonstrated a willingness to tackle the

“power structure” in Stark County (R. 250).

Respondents spent two weeks following the Ferren

interview investigating his charges. Specifically,

Respondents confirmed numerous circumstantial details

of Ferren’s story, including his clairned employment, the

details of his minor criminal record, the fact he actually

had been in jail at the time the solicitation by Perez

occurred, and that he had been taken from his cell to

Perez’s office for a meeting during that confinement (R.

250-51).

Younkin repeatedly tried to reach Petitioner both at

home and at work to get his response to the charges.

Although Younkin left explicit messages as to why he

was calling Perez, those calls were never returned (R.

251).

Younkin also spoke with other members of the law

enforcement community in an effort to obtain further

information about the charges; none of those he spoke

with told him that the charges were untrue or

unbelievable. He did learn from these law enforcement

sources of several instances in which Perez had been

* The complete text of the interview with Ferren which was broadcast

by Respondents is included in Petitioner’s Appendix at A2-A4.

6

given specific information about drug dealers, but had

taken no acticn against them (R. 251-52). The same

sources told Younkin that the Sheriff's Department had

allowed Charlie Smith, a ‘‘con man” with a long criminal

record who was friendly with several department

members, including Perez, to take and resell illegal drugs

that had been confiscated in department raids (Jd.).

So-called ‘‘street people’ and law enforcement

personnel both told Respondents that drugs seized in

raids by the Stark County Metropolitan Narcotics Unit,

of which Petitioner was a ranking officer, were not being

destroyed and were being resold on the _ street.

Respondents investigated Stark County files and

found no records of the destruction of seized drugs,

although such records are routinely kept in other Ohio

counties (R. 252-53).

There is no dispute that Respondents conducted this

extended investigation before publishing. Moreover,

Younkin’s unchallenged testimony was that he believed

the truth of the statements made to him by Ferren

regarding Perez’s solicitation to sell drugs illegally and

that he believed that the broadcasts were true (R. 253,

259).

The broadcast at issue primarily consisted of charges

made by Ferren himself on videotape. Twice thereafter

Ferren reiterated that those charges were true. The first

time was after a Sheriff's Department board of inquiry

‘“‘cleared’’ Petitioner of any wrongdoing, when Ferren

specifically stated on tape in another interview: ‘‘I stand

by what I said.”” (R. 258). The second reiteration

occurred in Ferren’s deposition when he was asked and

answered as follows:

7

Q. When you were being taped [by Mr.

Younkin] did you tell him the truth to the best of

your understanding at that time?

A. Yes.

(R. 319).

Neither the affidavit of Petitioner nor his deposition

contradicts Ferren’s testimony with regard to his

conversation with Petitioner that was reported by

Respondents.

No evidence contradicts Younkin’s testimony that he

found Ferren credible and believed him. In fact, during

the five years that this case was pending in the trial

court, Petitioner never took the deposition of any of the

Respondents, nor made any effort to establish what

Respondents had done in preparing the broadcasts.

Petitioner introduced no _ evidence pertaining to

Respondents’ state of mind as to the truth of the

broadcasts. The only evidence in the record as to

Respondents’ attitude toward the truth of the broadcasts

is the detailed affidavit of William Younkin, which

asserted unequivocally that he believed what was

published was the truth (Petitioner’s Appendix at A53).

8

REASONS FOR DENYING THE WRIT

I. PETITIONER FAILED TO RAISE OR

PRESERVE THE PURPORTED CONSTITUTIONAL

ISSUE REGARDING THE RIGHT TO A JURY

TRIAL AND OPEN ACCESS TO THE COURTS

WHICH HE HAS ASKED THIS COURT TO REVIEW.

Petitioner purports to raise a “‘constitutional’’ issue

concerning denial of his rights under the Ohio

Constitution to a jury trial and open access to the

courts. This is the very first time that Petitioner has

ever mentioned this issue. Because of this, he has failed

to preserve the issue for review by this Court.

It has long been the rule of the Ohio Supreme Court

that the syllabus of its decision contains the law of the

case. State ex rel. Donahey v. Edmondson, 89 Ohio St.

93, 107-108 (1913). See Beck v. Ohio, 379 U.S. 89, 93, n.2

(1964).* Thus, the only matters decided by the Ohio

Supreme Court are found in its syllabus. The syllabus of

the Ohio Supreme Court in this case (at Al-A2 of

Petitioner’s Appendix) makes no mention of the

purported constitutional issue Petitioner has attempted

to raise in his Petition. Therefore, under Ohio law the

Ohio Supreme Court did not pass on the issue in this

case.‘

*This principle of law is also set forth in Rule 1(B) of the Ohio

Supreme Court Rules for the reporting of opinions which states:

The syllabus of a Supreme Court opinion states the controlling

point or points of law decided in and necessarily arising from

the facts of the specific case before the Court for adjudication.

‘In fact, the Ohio Supreme Court’s opinion reviewed in toto reflects

no mention whatsoever of the issue Petitioner seeks to raise here.

There is no mention of Article I, Section 16 of the Ohio Constitution.

There is no discussion of the right to a jury trial. There is no mention

of Anderson v. Liberty Lobby, Inc. affecting the meaning of Rule 56

of the Ohio Rules of Civil Procedure.

9

This Court has consistently held that where the

highest state court has failed to pass upon the question

presented for review, it will be assumed that the

omission was due to want of proper presentation of that

issue in the state courts. See, e.g., Exxon Corp. v

Eagerton, 462 U.S. 176, 181, n.3 (1983); Street v. New

York, 394 U.S. 576, 582 (1969). This rule is based upon

sound policy, specifically the need to ensure a sound and

accurate record, and the requirement that the state’s

highest court first actually decide issues presented to

this Court for review. The rule requires that the

petitioner demonstrate that the issue he seeks to raise in

this Court was presented to and decided by the court

below. See Hill v. California, 401 U.S. 797 (1971).

Petitioner herein has not and cannot make such a

demonstration.°

Since Petitioner has failed to raise, present or

preserve the very issue he now seeks to have this Court

review, the Court should deny his petition.

‘The Petition is devoid of any indication or record reference to when

the question sought to be reviewed was first raised, how it was

raised, etc. so as to demonstrate that this Court has jurisdiction, as

required by Supreme Court Rule 21(h).

10

II. PETITIONER HAS FAILED TO ESTABLISH

JURISDICTION IN THIS COURT OR ANY BASIS

FOR DISCRETIONARY REVIEW BY THIS COURT.

Petitioner has failed to establish jurisdiction in this

Court under 28 U.S.C. $1257(3); nor has he qualified for

review under any of the criteria set forth in this Court’s

Rules for granting discretionary review when jurisdiction

exists.

Under 28 U.S.C. §1257(3), a decision of the highest

court of a state may be reviewed by this Court by writ of

certiorari where:

... any title, right, privilege or immunity is specially

set up or claimed under the Constitution, treaties or

statutes of, or commission held or authority

exercised under, the United States.

Petitioner has asserted only that his right to a jury

trial and free access to the courts guaranteed by

provisions of the Ohio Constitution have been impaired.

Petitioner has not raised any title, right, privilege or

immunity under the Constitution, treaties or statutes of

the United States. The interpretation of Petitioner's

rights under the Ohio Constitution is a question to be

decided by the Ohio courts, whose decisions on such

matters this Court is bound to accept. International

Longshoremen’s Ass’n, AFL-CIO v. Davis, 476 U.S. 380,

387 (1986) (this Court has “‘no authority to review state

determinations of purely state law’’); Hortonville Joint

School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S.

482, 488 (1976). By his own definition of the question

presented for review, Petitioner has established that this

Court has no jurisdiction to review this case.

11

Nor has Petitioner set forth any basis for this Court

to exercise its discretion to review this case, assuming

arguendo that it had jurisdiction to do so. Supreme

Court Rule 17 specifies those circumstances under which

the Court will grant discretionary review. Rule 17.1(a)

deals with the review of federal appellate decisions, and

is plainly inapplicable to this case. Rule 17.1(b) deals

with the review of decisions of state courts of last resort

which conflict with decisions of other state courts of last

resort or federal appellate courts. Petitioner has not

argued that any such conflict is presented by this case.

Rule 17.1(c), in relevant part, allows the review of

state court interpretations of important questions of

federal law which have not been, but should be, settled

by this Court, or state court decisions regarding federal

questions which conflict with this Court’s decisions.

Petitioner has not argued that the decision below

involves any undecided federal issue, or that the Ohio

Supreme Court decided any federal issue in conflict with

the decisions of this Court. Accordingly, Petitioner has

failed to establish any basis for review by this Court and

the petition should be denied.

12

III. THE DECISION OF THE OHIO SUPREME

COURT REQUIRES NO REVIEW BECAUSE IT

PLAINLY REFLECTS THAT THE COURT

CORRECTLY APPLIED WELL-ESTABLISHED

PRINCIPLES OF OHIO AND CONSTITUTIONAL

LAW TO THE SPECIFIC FACTS OF THIS CASE.

The decision of the Ohio Supreme Court in this case

requires no review, since it merely reflects the proper

application of several well-settled principles of Ohio and

constitutional law to the facts presented. The court

properly conducted an independent review of the entire

record to determine whether the record as a whole

established actual malice with convincing clarity. Bose

Corp. v. Consumers Union, 466 U.S. 485, reh’g denied,

467 U.S. 1267 (1984). In conducting its review, the court

relied on Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),

for the proposition that a public official plaintiff's burden

in a defamation action is to prove actual malice with clear

and convincing evidence. Well-established Ohio law is in

accord, and holds that a public official libel plaintiff must

produce evidence sufficient to raise a genuine issue of

material fact from which a reasonable jury could find

actual malice by clear and convincing evidence to avoid a

properly supported motion for summary judgment.

Bukky v. Painesville Telegraph & Lake Geauga Printing

Co., 68 Ohio St. 2d 45, 428 N.E.2d 405 (1981). Accord

Scott v. News Herald, 25 Ohio St. 3d 243, 496 N.E.2d

699 (1986); Dupler v. Mansfield Journal Co., 64 Ohio St.

2d 116, 413 N.E.2d 1187 (1980), cert. denied, 452 U.S.

962 (1981).

The Ohio Supreme Court also correctly invoked the

well-settled principle that the actual malice test focuses

on the defendant’s attitude toward the truth of the

publication at issue. E.g., Herbert v. Lando, 441 U.S.

13

153, 160 (1979); St. Amant v. Thompson, 390 U.S. 727,

731 (1968). Unless the plaintiff can demonstrate that a

publication was made with a high degree of awareness of

probable falsity, or that the defendant entertained

serious doubts about the truth of the publication, there

is no proof of actual malice. Garrison v. Louisiana, 379

U.S. 64, 74 (1964); St. Amant, 390 U.S. at 731.

Finally, the Ohio Supreme Court accurately observed

that only factual disputes that might affect the outcome

of the suit will preclude the entry of summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).®

The decision below resulted from the proper

application of the above well-settled principles of law to

the Ohio Supreme Court’s independent review of the

entire record. Because Petitioner failed to present any

clear and convincing evidence that Respondents believed

they were not publishing the truth, or that they had

acted in reckless disregard of the truth, the Ohio

Supreme Court reinstated the trial court’s entry of

summary judgment.

The Ohio Supreme Court’s decision recounts at

length the efforts of Respondents to corroborate their

infermation, and recognizes the obvious fact that such

efforts are powerful evidence of the absence of actual

malice—they reflect instead a commitment to finding the

* Petitioner's argument that Anderson v. Liberty Lobby, Inc. has

somehow undercut his Ohio constitutional rights is mystifying, given

the Ohio Supreme Cour 3 reliance on Liberty Lobby solely for this

point, which is hardly a novel one. Both Ohio and Federal Rule 56

have always provided that summary judgment should be granted if

there is no “genuine issue as to any material fact.” (Emphasis

added.) Liberty Lobby makes explicit what was always implicit in the

rule: a dispute of fact, the resolution of which cannot affect the

outcome of the case, is not “material” and does not preclude the

entry of summary judgment.

14

truth. The decision also specifically addresses each of

Petitioner's arguments that he claims establishes actual

malice, and explains why Petitioner is mistaken.

A review of the decision discloses that Petitioner

tried to prove actual malice by relying on ambiguous

facts or the alleged attitude of the Respondents toward

people rather than toward the truth. As the Ohio

Supreme Court recognized, that is not proof of actual

malice. See Time, Inc. v. Pape, 401 U.S. 279, 290, reh'g

denied, 401 U.S. 1015 (1971); Beckley Newspapers Corp.

v. Hanks, 389 U.S. 81, 82 (1967).

Petitioner's other “proof of actual malice is his

theory that heretofore unposed and unanswered

questions about what might have motivated

Respondents to make the broadcast requires an

examination into Respondents’ thought processes and

attitudes toward the truth of the broadcast. Petitioner

had five years and all the tools of discovery available to

him to make that inquiry. For whatever reason, he did

not. Now he complains to this Court that the allegations

of his Complaint ‘cannot be outweighed" by the specific

statements contained in the detailed affidavit of

Respondent Younkin which Petitioner dismisses as “‘self-

serving.” Simply reading Ohio Civil Rule 56(E)

(Petitioner's Appendix at A44-45) demonstrates that

Petitioner's argument is baseless.’

"It is ironic that Petitioner is complaining about the Ohio Supreme

Court's interpretation of Rule 56 of the Ohio Rules of Civil Procedure

when his own affidavit filed herein reflects a fundamental

misconception of what Rule 56 requires. That affidavit is replete with

inadmissible and irrelevant statements, including the statement that

Petitioner “will produce evidence’ that his reputation was damaged:

that “other [unspecified] acts of the defendant’ were equally

“demeaning™ to him; that the broadcast of the interview with Ferren

“impllied}" it was spontaneous; and that the deposition of Edward

Ferren proves not only * ‘reckless disregard” but also “actual malice.”

(R. 290). Obviously, these are not “facts” that are “admissible in

evidence" so as to preclude summary judgment. Ohio Civil Rule

56(E).

|

15

The Ohio Supreme Court pruperly sorted through

Petitioner's jumble of misconceptions and irrelevancies

and got to the heart of the matter. It announced no new

rule of law, nor did it rely on Anderson v. Liberty Lobby,

Inc., for anything more than the incontrovertible

proposition that only a dispute as to a material fact

precludes the entry of summary judgment which is

otherwise appropriate. Somehow, Petitioner has

transmogrified that reference into a denial of his Ohio

constitutional rights. His argument is utterly

unsupportable.

Petitioner has presented no important legal issue to

this Court for review. He simply wants to have this

Court review the facts and reach a different conclusion

than the Ohio Supreme Court reached. This Court does

not grant certiorari merely to review evidence and

discuss specific facts. United States v. Johnston, 268

U.S. 220, 227 (1925).

16

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

Louis A. COLOMBO,

Counsel of Record

CHARLES E. JARRETT

BAKER & HOSTETLER

3200 National City Center

Cleveland, Ohio 44114

(216) 621-0200

Counsel for Respondents