Petition for Writ of Certiorari — Netzley v. Celebrezze

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Supreme Court, U.S.

FILED

4% SEP 16

(J nei

90 -4 SQ E, SPANIOL, JR,

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

ROBERT E. NETZLEY,

Petitioner,

vs.

JAMES P. CELEBREZZE, ET AL.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Ohio Supreme Court

LOUIS PAISLEY, Counsel! of Record

HERNAN N. VISANI

BRIAN P. DOWNEY

WESTON, HURD, FALLON, PAISLEY

& HOWLEY

2500 Terminal Tower

Cleveland, Ohio 44113-2241

(216) 241-6602

Counsel for Petitioner

September 17, 1990

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

ROBERT E. NETZLEY,

Petitioner,

vs.

JAMES P. CELEBREZZE, ET AL.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Ohio Supreme Court

LOUIS PAISLEY, Counsel of Record

HERNAN N. VISANI

BRIAN P. DOWNEY

‘ WESTON, HURD, FALLON, PAISLEY

& HOWLEY

2500 Terminal Tower

Cleveland, Ohio 44113-2241

(216) 241-6602

Counsel for Petitioner

September 17, 1990

QUESTIONS PRESENTED

WHETHER THE SCOPE OF PROTECTION UNDER THE

FIRST AMENDMENT FOR FREEDOM OF SPEECH

ENCOMPASSES THE RIGHT OF A DEFENDANT IN A

LIBEL ACTION, TO HAVE THE COURT DETERMINE

WHETHER THE ALLEGED LIBELOUS STATEMENTS

ARE OF A TYPE WHICH PROVIDE A BASIS FOR SUCH

AN ACTION?

DOES THE FIRST AMENDMENT TO THE UNITED

STATES CONSTITUTION PROVIDE FOR ABSOLUTE

IMMUNITY FROM SUIT FOR DEFAMATION WHERE

THE TYPE OF SPEECH IN QUESTION IS THE EPITHET

"MAFIA FAMILY," USED IN A PARTISAN POLITICAL

CAMPAIGN PAMPHLET TO DESCRIBE THE SITU-

ATION EXISTING IN THE OHIO SUPREME COURT

DURING A CAMPAIGN FOR THE ELECTION OF

ASSOCIATE JUSTICES?

WHETHER THE OHIO SUPREME COURT’S DETER-

MINATION THAT THE TRIAL COURT’S DENIAL OF

THE PETITIONER’S MOTION FOR SUMMARY JUDG-

MENT IN THIS LIBEL ACTION IS NOT A FINAL

APPEALABLE ORDER UNDER OHIO REVISED CODE

§2505.02 UNCONSTITUTIONALLY DEPRIVED THE

PETITIONER HIS RIGHT TO DUE PROCESS UNDER

THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION?

No.

IN THE SUPRFME COURT OF THE UNITED STATES

October Term, 1990 -—

ROBERT E. NETZLEY,

Petitioner,

vs.

JAMES P. CELEBREZZE, ET AL.,

Respondent.

PARTIES TO THE PROCEEDINGS

Pursuant to Supreme Court Rule 14.1(6), petitioner Robert E.

Netzley states that the following individuals and/or corporations

were parties to the proceeding in the Ohio Supreme Court:

Miami County Republican Committee;

James P. Celebrezze;

There were no other parties to the Ohio Supreme Court pro-

ceeding. James P. Celebrezze and the Miami County Republican

Committee are the respondents herein.

TABLE OF CONTENTS

CR I ok onc ons vers wacccwes i

I re wee ii

py ES iv

PETITION FOR WRIT OF CERTIORARI............ 1

SN oe oo eR i nck tacsssccsneces 1

RE a ae a ae a 2

ee ee ae eae awe 4

CONSTITUTIONAL PROVISIONS AND STATUTE

Ee ee 4

STA THEE Mr INI oink ccc ccc cncaes 5

A nw we ec es 5

B Trial Court Proceedings .............. 8

S i istri Is Pr in S)

D Ohio Supreme Court Proceedings ........ 10

WHY THE WRIT SHOULD BE GRANTED .......... 11

1. The Supreme Court Has Never Determined

Whether The Scope Of Protection Under The

First_ Amendment For Freedom Of Speech

Encompasses The Right Of A Defendant In A

Libel Action To Have The C D :

Whether The Alleged Defamatory Statements

Made Are Of A Type Which Provide A Basi

i | AS Grn 12

. eee

ye pe apap and J ity From Liability H

‘ CONCLUSION

TABLE OF AUTHORITIES

Page

Cases

Buckley v. Valeo, 424 U.S. 1 (1976)

NEE oe ee ee ee 19

. 51 Ohio St.3d 89,

ys yg. Ye 2, 10

~ _

ee 20

485 U.S. 46 (1988) .............. 16, 17, 21, 24

Immuno A.G. v. Moor-Jankowski, 145 A.2d 114,

537 N.Y.S. 2d 129, aff'd,

74 N.Y. 2d 548, (1989), Judgment vacated,

___ US. ___ 110 S.Ct. 3266 (1990)........... 15

og 21

549 So.2d 1332 (Miss. 1989) ................ 15

on - < - Mt st)

111 L. Ed.2d 1 (1990) ...... i2, 14, 16, 17, 20, 22-25

eee 13, 14

PIPED ng cc ccc ccc oceccccce 19

I oa kb bs 6 os a 60 be oe 17, 19

Nixon v. Fitzgerald,

ee ee ee ee eee 14

Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984),

cost, dented, 471 U.S. 1127 (1965) ...........26. 9

Philadelphi

a i Ra i re 22

Scott v. Flower, F.2d 1990 Westlaw 119339,

ee oar re e ere 23

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

Se PEE sg wn 6 Guat ows 0-01 460n8 0 0 0 9

Smith v. McDonald, 737 F.2d 427 (4th Cir. 1984), aff'd,

Sey SS 2S 3 cata ak oe Woke hee 14

Washi ’

365 F.2d 965 (C.A.D.C. 1966), cert. denied,

FOS UEy PS Fs 86 0 So Be org ow ole és 15, 16

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U.S. Sup. Ct. R. 13.1.

U.S. Sup. Ct. R. 13.4.

U.S. Sup. Ct. R. 29.4(c)

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No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

ROBERT E. NETZLEY,

Petitioner,

vs.

JAMES P. CELEBREZZE, ET AL.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Ohio Supreme Court

Petitioner, Robert E. Netzley ("Netzley"), respectfully prays

that a writ of certiorari issue to review the decision and order of

the Ohio Supreme Court filed in these proceedings on May 16,

1990, and July 3, 1990.

OPINIONS BELOW

This petition seeks review of a judgment of the Ohio

Supreme Court that conflicts with decisions of this Court on the

issue of whether the First Amendment to the United States

Constitution provides for immunity from suit as well as from

liability for expressions of opinion made in the context of a

political campaign. The petitioner also seeks review of whether

the Ohio Supreme Court’s holding that the trial court’s denial of

his summary judgment motion was not a final appealable order

denied him his constitutional right to due process and whether a

denial of such summary judgment motions are immediately

appealable because the First Amendment guarantees immunity

from suit for statements which provide no basis for libel actions.

The decision and order of the Ohio Supreme Court in

Celebrezze v. Netzley are reported at 51 Ohio St.3d 89, 554

N.E.2d 1292 (1990), and are reproduced in the appendix at pp.

A-2 to A-14. The Ohio Supreme Court’s order denying the

petitioner’s motion for rehearing is reported at 52 Ohio St.3d 710,

and is reproduced in the appendix at pp. A-1. The Eighth District

Court of Appeals’ unreported decision is reproduced in the

appendix at pp. A-15 to A-54. The judgment and opinion of the

Cuyahoga County Common Pleas Court denying the petitioner’s

motion for summary judgment is also unreported and appears in

the appendix at pp. A-55 to A-79.

JURISDICTION

The decision of the Ohio Supreme Court was entered on May

16, 1990. The petitioner filed a timely motion for rehearing.

The motion for rehearing was denied on July 3, 1990. This

petition is timely filed within the time period provided by 28

U.S.C. §2101(c) and Supreme Court Rules 13.1 and 13.4. This

Court’s jurisdiction is invoked under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS AND

STATUTE INVOLVED

The constitutional provisions involved are the First and

Fourteenth Amendments to the U.S. Constitution. The statute

involved is Ohio Rev. Code Ann. §2505.02 (Baldwin 1987).

They appear in the Appendix at pp. A-80 to A-82.'

: Pursuant to U.S. Sup. Ct. R. 29.4(c), since the constitutionality of

Ohio Rev. Code §2505.02 is being drawn into question, as applied, 28 U.S.C.

§2403(b) may be applicable.

STATEMENT OF THE CASE

A. Statement of the Facts

Respondent James P. Celebrezze ("Celebrezze") filed this

action for libel, "false-light" invasion of privacy, and intentional

infliction of emotional distress against petitioner Robert E. Netzley

("Netzley"), the Miami County Republican Committee (“Com-

mittee"), The Plain Dealer Publishing Co. ("Plain Dealer"), and

Mary Anne Sharkey ("Sharkey").

Celebrezze filed the action as a result of the publication of

a political campaign pamphlet authored by Netzley and distributed

by the Committee, and as a result of the publication of two

newspaper articles authored by Sharkey and distributed by The

Plain Dealer.

Respondent Celebrezze, a Democrat, was an Associate Justice

of the Ohio Supreme Court from January 1983 through December

1984. In 1984, he ran for re-election against Judge Craig W.

Wright, ("Wright"), a Republican. The campaign generated

considerable political debate, controversy and publicity.

At that time, Celebrezze’s brother, Frank D. Celebrezze ("F.

Celebrezze") was the Chief Justice of the Court, and Anthony J.

Celebrezze, Jr. ("A. Celebrezze") was Ohio’s Attorney General.

The administration of the Ohio Supreme Court under F.

Celebrezze had drawn considerable criticism from the media, the

Ohio State Bar Association ("Bar Association"), legislators,

judges, and others. Those criticizing the cronyism and operating

tactics of the F. Celebrezze administration often likened the Court

to a “Mafia-type Family," and used terms consistent with the

metaphor.

Petitioner Netzley, a Republican, served in the Ohio House

of Representatives for over 25 years. He also chaired the Miami

County Republican Committee.

Netzley prepared a campaign pamphlet for the November 6,

1984, general election on behalf of the Committee. The campaign

pamphlet endorsed Republican candidates running for national,

state and local offices. The Committee distributed the pamphlet

only to registered voters of Miami County.

One of the six columns in the political pamphlet contained

Statements from the editorial page of the Dayton Daily News of

October 7, 1984, about Supreme Court candidates Douglas and

Wright, as weil as comments concerning the Celebrezze Court

and its administration. The pamphlet quoted the Dayton Daily

News’ characterization of Judge Douglas as fair, energetic and

brilliant, and of Judge Wright as brilliant. The other columns

contained opinions concerning other candidates and a sample

ballot.

The commentary on the Supreme Court used the same

metaphor and tone that had been repeatedly used to criticized the

Celebrezze Court and its administration. The campaign pamphlet

quoted the Dayton Daily News’ opinion of the Supreme Court

under F. Celebrezze “and his cronies" as being "the crudest, most

partisan, most vindictive in memory, and the most dangerous. ..."

The pamphlet urged the people to "JUDGE THE COURT" and

included the commentary complained of:

It’s no wonder that some are calling

Ohio’s Justice System the "MAFIA

FAMILY’ Court. Take a look. Frank

Celebrezze, Chief Justice, Brother

Jimmy Celebrezze, Associate Justice,

Cousin Tony Celebrezze, Ohio Attorney

General, and Frank Celebrezze’s

“Crony," Angelo Gagliardi [sic], in-

timidator in charge of the Ohio Dis-

ciplinary Council [sic].

ONLY THE VOTERS OF OHIO CAN STOP THEM

VOTE DOUGLAS and WRIGHT

The campaign pamphlet does not contain any specifics

suggesting criminal activity or association of any sort.’

B. Trial Court Proceedings

The trial court dismissed Celebrezze’s "false-light" invasion

of privacy claim. In October of 1986, Netzley, the Committee,

and The Plain Dealer, along with Sharkey, filed separate motions

for summary judgment on the remaining two claims in the Court

of Common Pleas of Cuyahoga County. Netzley argued that the

pamphlet contained expressions of opinion absolutely protected

under the First Amendment. The trial court granted the motion

filed by The Plain Dealer and Sharkey, but denied the motions

filed by Netzley and the Committee. The trial court concluded

that its findings constituted final judgments for each defendant.

. The entire pamphlet is attached as Exhibit A to the Opinion

and Order of the Eighth District Court of Appeals and appears in the Appendix

at pp. A-51 to A-52.

C. Eighth District C Of / Is P r

Petitioner Netzley and the Committee appealed from the

denial of their motions for summary judgment arguing that ab-

solute constitutional immunity was provided under the First

Amendment to expressions of opinion. Celebrezze cross-appealed

from the trial court’s order grantit.g the motion filed by The Plain

Dealer and Sharkey. The cases were consolidated.

The Court of Appeals for the Eighth Appellate District held

that the trial court’s order denying the motions filed by Netzley

and the Committee was a final order pursuant to Ohio Rev. Code

§2505.02 because the order affected a substantial right made in a

special proceeding. After analyzing the political pamphlet under

the test set forth in Scott v. News-Herald, 25 Ohio St.3d 243, 496

N.E.2d 699 (1986), and Ollman vy. Evans, 750 F.2d 970 (D.C.

Cir. 1984), cert, denied, 471 U.S. 1127 (1985), the Court of

Appeals held that the publications were non-actionable expressions

of opinion. The Court of Appeals reversed the trial court’s denial

of the motions filed by Netzley and the Committee, rendered

judgment in their favor, and affirmed the trial court’s grant of the

motion filed by The Plain Dealer and Sharkey.

D. Qhio Supreme Court Proceedings

Celebrezze filed a notice of appeal from the August 15, 1988

judgment of the Eighth District Court of Appeals, which con-

stituted a motion to certify the record pursuant to Rule II, Section

2 of the Rules of Practice of the Ohio Supreme Court. The Ohio

Supreme Court denied the motion with respect to The Plain

Dealer and Sharkey, but granted the motion with respect to

petitioner Netzley and the Committee.

On May 16, 1990, the Ohio Supreme Court reversed the

judgment of the Eighth District Court of Appeals and remanded

the case to the trial court for further proceedings consistent with

its opinion. The Ohio Supreme Court held that the “denial of the

petitioner’s motion for summary judgment was not made in a

special proceeding and was not otherwise a final appealable

order." 51 Ohio St.3d at 93. Thus, the Chio Supreme Court

found that the Eighth District Court of Appeals had no jurisdiction

to hear the appeal. The Ohio Supreme Court based its decision

on the ground that the immunity accorded by the First Amend-

ment provided immunity from liability, but not immunity from

suit. Id. at 92.

The petitioner filed a motion for rehearing on May 29, 1990,

on grounds that the Ohio Supreme Court’s decision turned upon

an issue neither raised by the respondents, nor briefed by the

petitioner. Respondent Celebrezze never briefed or argued that

the First Amendment to the United States Constitution affords

expressions of opinion immunity from liability only, yet does not

provide such expressions for immunity from suit. Consequently,

prior to his motion for rehearing, petitioner Netzley never had the

opportunity to brief or argue the immunity guaranteed under the

First Amendment is an immunity from suit.’

The Ohio Supreme Court denied the petitioner’s motion for

a rehearing.

WHY THE WRIT SHOULD BE GRANTED

1. The Supreme Court Has Never Determined

Whether The Scope Of Protection Under The

First Amendment For Freedom Of Speech

. Petitioner Netzley specifically raised the issue that construing

Ohio Revised Code §2505.02 to hold a denial of a defendant's motion fer

summary judgment in a libel action an interlocutory order unconstitutionally

deprives the defendant of their rights to due process in his brief to the Ohio

Supreme Court and in his motion for rehearing. The Ohio Supreme Court did

not address this issuc.

The First Amendment affords full constitutional protection

from libel actions for statements made concerning public figures

on matters of public concern if the statements are not provable as

false, or if they cannot reasonably be interpreted as stating actual

facts about the public figure involved. Milkovich v. Lorain

Journal Co., US. _, 111 L. Ed.2d 1, 16-18 (1990).

Such statements are not actionable as a matter of constitutional

law because they provide no basis for libel actions. Id. at 16.

"Full constitutional protection” necessarily encompasses the right

of a defendant in such actions to have the court determine, in a

summary proceeding, whether the alleged defamatory statement

are of the type deemed actionable. Consequently, “fuli constitu-

tional protection” also encompasses the right of a defendant to an

immediate appeal if a trial court denies his summary judgment

motion.

This principle is an implicit part of the Supreme Court’s

decisions concerning the First Amendment and political speech,

but has yet to be articulated in the First Amendment context. The

protection guaranteed is that the defendant is immune from suit,

as well as liability, if the statements are of the type which are not

actionable. The Ohio Supreme Court’s decision effectively

mandates that a defendant’s right under the First Amendment must

be resolved at trial. That decision is contrary to the fundamental

principle of the First Amendment which protects the free flow of

ideas and prevents restraints upon public, and especially political,

speech.

This Court has determined that an order denying a claim of

qualified immunity is immediately appealable because it is an

entitlement not to stand trial under certain circumstances, and is

an immunity from suit and not liability. Mitchell v, Forsyth, 472

U.S. 511,526 (1985). “The immunity is effectively lost if a case

is erroneously permitted to go to trial." Id. The underlying

reasoning for allowing an immediate appeal is that the Court’s

decision is effectively unreviewable on appeal from a final judg-

ment. Jd. at 527. See, also, Smith vy. McDonald, 737 F.2d 427

(4th Cir. 1984), aff'd, 471 U.S. 1127 (1985) (An order denying

a claim of absolute privilege under the First Amendment right to

petition is immediately appealable in a libel action).

This Court has also held that orders denying summary judg-

ment motions which assert absolute immunity defenses are im-

mediately appealable under the Collateral Order Doctrine. See,

e.g., Nixon v, Fitzgerald, 457 U.S. 731 (1982).

This Court has consistently held that certain types of state-

ments are not actionable if they are not provably false or cannot

be reasonably interpreted as stating actual facts about the public

figure involved. Milkovich, at 16-18. Since certain types of

statements are not actionable, a defendant in a libel action has the

right under the First Amendment to have this issue resolved prior

to trial. Thus, similar to the absolute and qualified immunity

cases discussed above, immediate appellate review of these issues

is necessary or the substance of the constitutional protection is

lost. Deferring the resolution of whether or not the statements

made are actionable, until after trial, defeats the nature of the

constitutional protection. Immunity from liability and the pre-

clusion of recovery for statements which are not actionable neces-

sarily includes immunity from suit as well. This prevents the

chilling effect the threat and the burden such litigation has on

political speech, and is consistent with the fundamental principles

of the First Amendment.

Numerous courts have recognized that summary procedures

are essential to preserve the constitutional protection guaranteed

by the First Amendment. See, Meridian Star, Inc, v. Williams,

549 So.2d 1332 (Miss. 1989); Immuno A.G, v. Moor-Jankowski,

145 A.2d 114, 537 N.Y.S. 2d 129, aff'd, 74 N.Y. 2d 548,

(1989), Judgment vacated, _____ U.S. , 110 S.Ct. 3266

(1990); Washington Post Co. v, Keogh, 365 F.2d 965 (C.A.D.C.

1966), cert. denied, 385 U.S. 1011 (1967). This is because:

One of the purposes ... is to prevent

persons from being discouraged in the

full and free exercise of their First

Amendment rights with respect to the

conduct of their government. The threat

of being put to the defense of a lawsuit

brought by a popular public official may

as chilling to the exercise of First

Amendment freedoms as fear of the

outcome of the lawsuit itself *** unless

persons, including newspapers, desiring

to exercise their First Amendment rights

are assured freedom from the harass-

ment of lawsuits, they will tend to

become self-censors. ...

Washington Post, at 968.‘

The Ohio Supreme Court decision in the instant case creates

an anomalous situation: public officials are entitied to have their

claims for immunity from suit determined prior to trial, while the

private citizen accused of committing libel against that public

official must wait until trial to resolve his claim that the state-

ments made provide no basis for the libel action. Which right in

question is more basic under the constitution? The core of the

First Amendment is the recognition of the fundamental principle

of the free flow of ideas and opinions on matters of public interest

and concern. Hustler Magazine v. Falwell, 485 U.S. 46,50

(1988). The opportunity for free political uiscussion is a fun-

. The state cases cited above both held that the alleged

defamatory statements made were not actionable under the First Amendment

because they were expressions of opinion. In light of Milkovich, discussed infra,

the continuing validity of these holdings is questionable. However, Milkovich

expressly indicates that certain types of statements provide no basis for recovery

in a libel or defamation action, and are not actionable. Thus, a defendant's right

in a libel action to have the court determine by way of summary proceeding

whether the alleged defamatory statements are of an actionable type is still a

viable issue, and has yet to be articulated by this Court. The Ohio Supreme

Court determination that the First Amendment only guarantees immunity from

liability, holds that a defendant has no such right.

damental principal of our constitutional system. New York Times

y. Sullivan. 376 U.S. 254 (1964).

The rights guaranteed to a defendant in a libel action against

a public official are clearly paramount to the rights guaranteed to

the public official in question to be immune from certain conduct.

“One of the prerogatives of American citizenship is the right to

criticize men and measures." Falwell, 45 U.S. at 51 (citation

omitted). The First Amendment rights in question are the foun-

dation upon which this country was built. The right of the public

to criticize their elected officials is the most fundamental freedom

that the First Amendment freedom of speech clause was intended

to protect.

In New York Times and its progeny, this Court has consis-

tently held that certain types of statements provide no basis for

libel or defamation actions and are guaranteed “full constitutional

protection” under the First Amendment. Milkovich, at 16-18.

Implicit in the Court’s holdings that these statements are not

actionable is that the defendant in such actions has the right to

have the court determine, in a pretrial summary proceeding,

whether the alleged defamatory statements made are of a type

which can provide a basis for such an action. By necessity then,

the defendant is also entitled to an immediate appeal from the

denial of his motion for summary judgment. The full constitu-

tional protection guaranteed includes immunity from suit, as well

as immunity from liability.

Allowing public officials to have their immunity determined

before trial, but forcing the people who elect them to wait until

trial to have the immunity question determined is contrary to basic

principles of the First Amendment. It allows political speech to

be chilled and restrains the open political discussion fundamental

to this country. Therefore, a writ for certiorari should be issued

to review the decision of the Ohio Supreme Court.

Public discourse on political figures is the most fundamental

of the freedoms of speech which the First Amendment was in-

ig i DAE Bk Of eine Ms

tended to protect. This Court has recognized that the need for

free debate and evaluation by the people on the qualifications for

candidates for public office is necessary to the operation of a

Republican system of government. Buckley v. Valeo, 424 U.S.

1,14 (1976) (per curiam). The First Amendment has its fullest

and most urgent application to speech uttered during a campaign

for political office. Monitor Patriot Co. v. Roy, 401 U:S.

265,272 (1971).

The Ohio Supreme Court’s decision conflicts with the ap-

plications of the principles announced in the above cases, and

directly contravenes the fundamental basis of the constitutional

protection afforded by the First Amendment.

b. Constitutional Immunity From

Suit. ,

The Ohio Supreme Court’s holding conflicts with the

Supreme Court’s decisions in New York Times and its progeny,

which indicate that the First Amendment protection of speech

concerning a public, political figure, on matters of public con-

cern, includes immunity from suit for statements which cannot be

provable as false, or cannot reasonably be interpreted as stating

actual facts about the public figure involved.

In Milkovich v. Lorain Journal Co., supra, this Court held

that the constitutional protection guaranteed by the First Amend-

ment for freedom of speech did not include a separate constitu-

tional privilege for expressions of opinion. 111 L. Ed.2d at 17.

The Court reasoned that existing constitutional doctrine adequately

secured the right to freedom of expression, making the creation of

a separate constitutional distinction between expressions of

opinion and expressions of fact unnecessary. Id. at 18.

The Milkovich Court expressly stated that existing constitu-

tional doctrine limited “the type of speech which may be the

subject of state defamation actions." Id. at 16. (First emphasis

by Court). (Second emphasis added). This Court has previously

held numerous examples of rhetoric, hyperbole, invective and

vigorous epithets used in the context of campaigns and political

controversies as constitutionally protected. In Greenbelt Co-

operative Publishing Assn. v. Bresler, 398 U.S. 6,13-14 (1970),

the Court held that the imposition for libel on the basis of a

newspaper article indicating that “some people” had characterized

a real estate developer’s negotiating position as "blackmail," was

ia ae eh ali

“constitutionally impermissible." Further, in Hustler Magazine,

Inc. v, Falwell, supra, the Court held that the First Amendment

precluded recovery under a state emotional distress action for an

ad parody which "could not reasonably have been interpreted as

stating actual facts about the pubic figure involved." Id. at 50.

See, also, Letter Carriers v. Austin, 418 U.S. 264,284-286 (1974)

(the use of the word “traitor” in the literary definition of a union

"scab" provided no basis for a defamation action under federal

labor law).

The above cases indicate that the constitutional protection

guaranteed under the First Amendment for discourse and debate

in political campaigns and controversies is to provide the speaker

with immunity from liability, as a matter of constitutional law.

This Court has consistently held that certain rhetorical, epithetical

Statements used in matters of public concern during political

debates and controversy provide no basis for state defamation

actions. Thus, the constitutional protection which precludes

recovery aid prevents liability for such epithets, necessarily

provides for immunity from suit as well, because there is no basis

for the bringing of the action.

Protection from suit is essential to ensure that expressions of

opinion will not be self-censored or chilled in any way. At the

heart of the First Amendment is a right to be free from prior

restraints, whether or not self-imposed. This is particularly true

where, as in the instant case, the speech involved is at the core of

First Amendment values, regarding political discourse and public

debate.

The Milkovich Court stated that Philadelphia Newspapers,

Inc, v. Hepps 475 U.S. 767 (1986) stands for the proposition that

Statements on matters of public concern “must be provable as

false before there can be liability under state defamation jaw. ..."

Milkovich at 18. The Court further stated that Hepps ensures that

statements of opinion relating to matters of public concern which

do not contain provably false factual connotation will receive “full

constitutional protection.” Id. (Emphasis added). The Court

then explained the difference between a provably false statement

and a not provably false statement, indicating that:

Thus, -unlike the statement, ‘in my

opinion Mayor Jones is a liar’ the

statement ’in my opinion Mayor Jones

shows his abysmal ignorance by ac-

cepting the teachings of Marx and

Lenin,’ would

Miikovich, at 18. (Emphasis added).

Thus, the full constitutional protection which is guaranteed

under the First Amendment for matters of opinion relating to

political campaign situations fully encompasses the right not to be

sued for the making of such statements. Statements which are not

provably false, or which contain rhetoric which cannot be

reasonably interpreted as stating actual facts about the pubic figure

involved, are not actionable. This constitutional protection fully

covers immunity from suit, as well as immunity from liability.

See, Milkovich, at p. 18. Accord, Scott v. Flower, _—s*F.2d

____ 1990 Westlaw 119339 p. 14, n. 31 (Sth Cir. 1990)

(Garwood J., Dissenting). (Citing Milkovich). Consequently, the

use of summary proceedings to make this determination and

immediate appeals from orders finding the statements actionable

are also guaranteed. To otherwise interpret the application of the

First Amendment cases by the Supreme Court would emasculate

the core of the First Amendment. Campaign rhetoric, political

debate and discourse would be chilled by an actual lawsuit or the

threat of a pending lawsuit. Injunctive relief could be used to

preempt any alleged defamatory remarks which arguably contains

only such rhetoric.

The Milkovich case involved a high school wrestling coach

who was allegedly defamed by an article in a local paper that

accused him of lying to a high school investigatory board. The

instant case involves speech made in a partisan political campaign

pamphlet during an election for Associate Justice of the Ohio

Supreme Court. The distinction between the two plaintiffs and the

effects of the litigation is obvious. The chilling effect of the

threat and burden of litigation concerning political speech greatly

harms open and free discourse on political candidates, and thus

limits the rhetorical hyperbole which has “traditionally added

much to the discourse of our nation.” See, Falwell, at 53-55.

The chilling effect on the nature of political discourse and public

debate is created by the expense and burden of litigation, and the

threat thereof, and not simply the threat of liability.

Thus, the Ohio Supreme Court’s decision that the nature of

the immunity guaranteed by the constitution for the expression of

opinion is an immunity from liability and not from suit is clearly

erroneous based on federal First Amendment law.’ A writ of

certiorari should be granted to clarify the position of the Supreme

Court on this important question, and to ensure that those denied

summary judgment motions in libel and defamation actions of this

type are given the full protection guaranteed them by the First

Amendment.

Further, this case gives this Court the opportunity to

indicate its position, if any, on the "negative" method of political

campaigning which has become prevalent in today’s politics.

3. This_Case_Presents_An_Important_Question

ee lable Order Deni

The Defendant His Constitutional Richt To D

Process.

. Milkovich held that no separate constitutional protection exists

for expressions of opinion. The Milkovich Court indicates that existing

constitutional doctrine precludes liability and prevents recovery for certain types

of statements which are not provable as false or cannot reasonably be interpreted

as representing actual facts about the public figure involved. Implicit in this

principle is that a defendant in such a case is immune from suit, as well as from

liability, since the types of statements are not actionable. - Thus, the Ohio

Supreme Court's decision as to the nature of the immunity guaranteed by the

First Amendment and when in the litigation process it may be determined is still

a viable issue. The Supreme Court has yet to articulate its position on this issue

in a First Amendment context.

The Ohio Supreme Court’s decision that the denial of a

summary judgment motion in a libel action is not a final ap-

pealable order violates the petitioner’s right to due process under

the Fourteenth Amendment. In cases involving statements of

opinion which are not provably false or which cannot reasonably

be interpreted as stating facts about the public figure involved, the

defendant in the libel action is guaranteed full constitutional

protection, which includes immunity from suit as weil as im-

munity from liability. See, discussion, Ante, at pp. 19-26. The

failure to provide parties with an immediate appeal from orders

denying the immunity necessarily deprives them of their due

process by disallowing their right to exercise the constitutional

protection guaranteed by the First Amendment.

The Ohio Supreme Court’s holding that the Appellate Court

had no jurisdiction to determine the propriety of the trial court’s

denial of the petitioner’s summary judgment motion destroys the

petitioner’s right under the First Amendment which guarantees

that such statements must be actionable before he can be liable.

The petitioner has the right to have the Court determine whether

the statements he made are the type of statements which the

Supreme Court has deemed actionable.

The determination that appeals from denials of summary

judgment motions in these types of cases are not available, leaves

the court system wide open for an influx of defamation cases by

disgruntled politicians who lost their elections and desire either a

scapegoat or more publicity. The use of summary proceedings in

these cases is necessary to promote the free political debate vital

to our system of government, to prevent the restraint on such

debate that this type of litigation causes, and to provide the

defendants with the full constitutional protection guaranteed by

the First Amendment. Consequently, the right to an immediate

appeal from those summary proceedings is also necessary.

Therefore, the Ohio Supreme Court’s decision was erroneous

and a writ of certiorari should be issued for review of that

decision.

CONCLUSION

A writ of certiorari should issue to review the decision and

order of the Ohio Supreme Court for the following reasons:

1) This Court has never ruled on

whether the First Amendment right to

freedom of speech guarantees im-

munity from suit as well as immunity

from liability, thus encompassing the

right of a defendant in a libel action

to have a court determine in a sum-

mary proceeding whether the alleged

libelous staternents are of a type

which provide a basis for such action;

2) This case gives the Court the oppor-

tunity to clarify and articulate its

position concerning the propriety of

summary proceedings and immediate

appeals therefrom as a method of

ensuring that a defendant in a libel

action receives the full constitutional

protection guaranteed by the First

Amendment;

3) This case presents an opportunity for

the Court to decide whether the denial

of an immediate appeal from a denial

of a defendant’s motion for summary

judgment in a libel action deprives

the defendant of his rights to due pro-

cess;

4) This case presents the opportunity for

the Court to ensure full and candid

political debate will continue to exist

in political campaigns despite being

vitriolic in nature, and will continue

to add to the discourse of our nation;

and

BEST AVAILABLE COPY i

This case presents an opportunity for

the Court to establish parameters for

political rhetoric in view of the

national debate on the politics of

“negative” political campaigns.

Respectfully submitted,

(2.

LOUIS PAISLEY (#0017498)

Counsel of Record

HERNAN N. VISANI (#0035856)

BRIAN P. DOWNEY (#0042233)

WESTON, HURD, FALLON, PAISLEY

& HOWLEY

2500 Terminal Tower

Cleveland, Ohio 44113-2241

(216) 241-6602

Counsel for Petitioner

APPENDIX

ENTRY OF THE OHIO SUPREME COURT

(filed July 3, 1990)

THE SUPREME COURT OF OHIO

1990 TERM

To wit: July 3, 1990

James P. Celebrezze, ;

Appellant, : Case No. 88-1755

v. ENTRY

Det E. Netzley et al.,

| Appellees.

This case came on for further consideration upon appellees’

motion for rehearing and for stay. Upon consideration thereof,

IT IS ORDERED by the Court that said motions be, and the

same are hereby, denied.

(Court of Appeals Nos. 53864 & 53865)

ROBERT E. HOLMES

Acting Chief Justice

MANDATE OF THE OHIO SUPREME COURT

(filed May 16, 1990)

THE SUPREME COURT OF OHIO

1990 TERM

To wit: May 16, 1990

James P. Celebrezze, :

Appellant, : Case No. 88-1755

v. : MANDATE

Robert E. Netzley et al.,

Appellees.

To the Honorable Court of Common Pleas

Within and for the County of Cuyahoga, Ohio.

The Supreme Court of Ohio commands you to proceed

without delay to carry the following judgment in this cause into

execution:

Judgment of the court of appeals applicable to appellees is

reversed and the cause is remanded to the trial court for further

proceedings consistent with the opinion rendered herein.

COSTS:

Motion Fee, $20.00, paid by Don C. Iler Co., L.P.A.

(Court of Appeals Nos. 53864 & 53865)

ROBERT E. HOLMES

Acting Chief Justice

JUDGMENT ENTRY

APPEAL FROM THE COURT OF APPEALS

(filed May 16, 1990)

we %

THE SUPREME COURT OF OHIO

1990 TERM

To wit: May 16, 1990

James P. Celebrezze,

Appellant, — Case No. 88-1755

v. ; JUDGMENT ENTRY

Robert E. Netzley et al., APPEAL FROM THE

| Appellees. COURT OF APPEALS

; This cause, here on appeal from the Court of Appeals for

_ Cuyahoga County, was considered in the manner prescribed by

law. On consideration thereof, the judgment of the court of

appeals applicable to appellees is reversed and the cause is re-

manded to the trial court for further proceedings consistent with

the opinion rendered herein.

CD Rat Va eS

It is further ordered that the appellant recover from the

appellees its costs herein expended; and that a mandate be sent to

the Court of Common Pleas for Cuyahoga County to carry this

judgment into execution; and that a copy of this entry be certified

to the Clerk of the Court of Appeals for Cuyahoga County for

entry.

(Court of Appeals Nos. 53864 & 53865)

/s/ Robert E, Holmes

ROBERT E. HOLMES

Acting Chief Justice

OPINION OF THE

OHIO SUPREME COURT

(filed May 16, 1990)

THE SUPREME COURT OF OHIO

CELEBREZZE, Appellant,

NETZLEY et al., Appellees.

No. 88-1755

Supreme Court of Ohio

Submitted March 6, 1990

Decided May 16, 1990

During the 1984 campaign for election of associate justices

to the Supreme Court of Ohio, the Executive Committee of the

Miami County Republican Party ("Committee") printed and dis-

tributed a campaign brochure encouraging the election of the entire

Republican slate of candidates. The brochure made an ethnic

reference concerning the appellant, James P. Celebrezze, to which

Celebrezze objected.

Celebrezze was not reelected associate justice. After the

election, the appellee Plain Dealer Publishing Company ("Plain

Dealer") ran an article about the brochure. Two days later, the

Plain Dealer published an editorial which was highly critical of

the brochure and of appellee Robert Netzley, the Chairman of the

Miami County Republican Party’s Executive Committee, who had

allegedly refused to apologize for the brochure.

On February 6, 1985, appellant commenced this action for

libel, invasion of privacy, and intentional infliction of emotional

distress against Netzley, the Committee, the Plain Dealer, and

Mary Anne Sharkey, then a reporter for the Plain Dealer’s

oni ill

perrs

GiLidny den diea once

c=)

Columbus office. The court dismissed the invasion of privacy

claim, and the Plain Dealer and Sharkey filed motions for sum-

mary judgment, which were granted. Similar motions for sum-

mary judgment filed by Netzley and the Committee were over-

ruled. In making its findings, the court determined that there was

no just reason for delay, pursuant to Civ. R. 54(B). Notices of

appeal were filed by Netzley, the Committee, and appellant.

The court of appeais affirmed the grant of summary judgment

in favor of the Plain Dealer and Sharkey. The court reversed,

however, the trial court’s denial of summary judgment in favor of

Netzley and the Committee. In determining the threshold question

of its jurisdiction of the appeal from such order, the court held

that “denying a defendant as a matter of law the absolute immunity

accorded expressions of opinion in a defamation action affects a

substantial right and is made in a special proceeding,” and that

thus the order was a final appealable order, pursuant to R.C.

2505.02. Having found jurisdiction, the court of appeals held that

the brochure statements were expressions of hyperbolic opinion

entitled to the protections of the First Amendment.

The cause is now before this court upon the allowance of a

motion to certify the record.

Don C. Iler Co., L.P.A., and Don C. Iler, for appellant.

Weston, Hurd, Fallon, Paisley & Howley, Louis Paisley and

Hernan N. Visani, for appellee Robert E. Netzley.

Huffman, Landis & Weaks and Robert Huffman, for appellee

Miami County Republican Committee.

PER CURIAM.

[1] The controlling issue in this case is whether the denial of

a motion for summary judgment constitutes a final appealable

order, pursuant to R.C. 2505.02, where such motion is premised

upon the assertion of an absolute immunity from liability in defa-

mation actions accorded under the First Amendment to expressions

of opinion. For the reasons which follow, we answer such query

in the negative, and thus reverse the decision of the court of

appeals.

R.C. 2505.02 provides, in pertinent part:

"An order that affects a substantial right

in an action which in effect determines

the action and prevents a judgment, an

order that affects a substantial right

made in a special proceeding or upon a

summary application in an action after

judgment, or an order that vacates or

sets aside a judgment or grants a new

trial is a final order which may be

reviewed, affirmed, modified, or re-

versed, with or without retrial.”

An order, to be final, must fit into at least one of the thre

categories set forth in R.C. 2505.02.

Generali Electric Supply Co

v. Warden Electric, Inc., (1988), 38 Ohio St.3d 378, 528 N.E.2

195, syllabus.

[2] The trial court’s grant of summary judgment in favor a

defendants Sharkey and the Plain Dealer “determine[d] the action

as to these parties, and was thus a final order pursuant to R.C

2505.02. Together with the appropriate Civ.R. 54(B) language

it was a final appealable order, even though the summary judg

ment motions filed by appellees Netzley and the Committee wer

denied. Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2:

1381, at syllabus.

[3] The denial of a motion for summary judgment does nc

determine the action and prevent a judgment, and thus generall

does not constitute a final order under R.C. 2505.02.

Kilbane (1982), 1 Ohio St.3d 269, 271, 1 OBR 379, 380-381, 43:

N.E.2d 888, 890; Balson v. Dodds (1980), 62 Ohio St.2d 287, 1

0.0.3d 329, 405 N.E.2d 293, paragraph one of the syllabus; State

ex rel. QOvermeyer, v. Walinski (1966), 8 Ohio St.2d 23, 3

a (FP §£ *e + |

Po ee ine

. Baha ee ei

shite DISS PNB RS PRD eR OT,

‘4 Wiad Kalas Bitar aiss he esa Sceel

0.0.2d 358, 222 N.E.2d 312.' Further, as this court observed in

Noble, supra, 44 Ohio St.3d at 96, 540 N.E.2d at 1385, the trial

court’s use of Civ. R. 54(B) language “does not turn an otherwise

non-final order into a final appealable order."

[4] Here, however, appellees argue, and the court of appeals

held, that the trial court’s order denying summary judgment on

the ground that the alleged libelous statements were actionable

statements of fact -- not expressions of opinion -- affects “a sub-

stantial right made in a special proceeding,” and is thus a final

order under the second category of R.C. 2505.02. There is little

doubt that the denial of summary judgment below affects a sub-

stantial right, i.e., the right to express one’s opinion as guaranteed

by the First Amendment to the United States Constitution and

Section 11, Article I of the Ohio Constitution.

However, the order denying summary judgment was not

“made in a special proceeding” as this court has previously

construed that term. See, ¢.g., General Acc. Ins, Co. v.

Insurance Co. of North America ( (1989), 44 Ohio St.3d 17, 540

N.E.2d 266, paragraph two of the syllabus (order in a declaratory

judgment action); Tilberry v. Body (1986), 24 Ohio St.3d 117, 24

OBR 308, 493 N.E.2d 954 (order in a statutory dissolution of a

partnership); Humphry v, Riverside Methodist Hosp, (1986), 22

Ohio St.3d 94, 22 OBR 129, 488 N.E.2d 877 (order compelling

disclosure of confidential information); Amato v. General Motors

Corp, (1981), 67 Ohio St.2d 253, 21 0.0.3d 158, 423 N.E.2d 452

(certification of a class under Civ. R. 23[C]). Cf. Bernbaum v.

Silverstein (1980), 62 Ohio St.2d 445, 16 0.0.3d 461, 406 N.E.2d

, State, ex rel. Overmeyer v. Walinski, supra, involved a

publisher (Overmeyer) who had been named as a defendant in a libel action.

Overmeyer had moved for summery judgment, which was denied by the trial

court. Overmeyer then brought a mandamus action in this court, asserting that

the judge had a mandatory duty to enter summary judgment on his behalf. This

court denied the writ, citing the above authority that a denial of summary

judgment is not a final order, and holding that mandamus cannot be used to

create an appeal from an order which is not a final order. Id. 8 Ohio St.2d at

23-24, 37 0.0.2d at 358-359, 222 N.E.2d at 312.

532 (overruling a motion to disqualify counsel is not an order

made in a special proceeding), and cases cited therein at 447, 16

0.0.3d at 462-463, 406 N.E.2d at 534. The court’s order in this

case was made in “a straightforward civil action,” Noble, supra,

44 Ohio St.3d at 94, 540 N.E.2d at 1383, that is, one for defa-

mation.

Nor is a denial of summary judgment converted into a

"special proceeding" in and of itself by virtue of the First Amend-

ment interest involved. The court of appeals seized upon our

statement in Scott v. NewsHerald (1986), 25 Ohio St.3d 243, 250,

25 OBR 302, 307, 496 N.E.2d 699, 705, that “[e]xpressions of

opinion are generally accorded absolute immunity from liability

under the First Amendment," and erroneously concluded that

"[iJmmunity from damages necessarily includes immunity from

trial." The court of appeals then analogized this case to federal

cases permitting the interlocutory appeal of orders denying

motions asserting an absolute or qualified immunity defense

pursuant to the collateral order doctrine adopted in

Beneficial Indus. Loan Corp. (1949), 337 U.S. 541, 546, 69 S.Ct.

1221, 1225, 93 L.Ed. 1528.

[5] We do not rely upon these cases here. Under the federal

collateral order doctrine, orders which do not terminate the

proceedings in the district court are final and appealable for

purposes of Section 1291, Title 28, U.S. Code, if they (1) con-

clusively determine the disputed question, (2) resolve an important

issue completely separate from the merits of the action, and (3)

are effectively unreviewable on appeal from a final judgment.

Coopers & Lybrand v. Livesay (1978), 437 U.S. 463, 468, 98

S.Ct. 2454, 2457, 57 L.Ed.2d 351. This doctrine involves

judicial construction of the federal final order statute and is thus

not applicable to the states, although a state may of course adopt

a similar rule under its own statutes. Borman v. Borman (1979),

378 Mass. 775, 393 N.E.2d 847. This court has not adopted a

similar collateral order rule, and even if we had, this case would

not come within the ambit of such rule.

First, the issue presented in this case is not “completely

separate from the merits of the action." Indeed, the question of

whether appellees, statements constituted opinion or fact is an

Al0

essential issue in every defamation action - it is not a collateral

issue. See Van Cauwenberghe v. Biard (1988), 486 U.S. 517,

527-530, 108 S.Ct. 1945, 1952-1954, 100 L.Ed.2d 517 (denial of

a motion to dismiss on the ground of forum non conveniens is not

completely separate from the merits of the action and thus is not

immediately appealable under the collateral order doctrine).

Second, the issue presented by appellees, motions for sum-

mary judgment is not “effectively unreviewable on appeal from a

_ final judgment." Each of the cases relied upon by the court of

appeals dealt with immunity from suit rather than defense to

liability. See Nixon v, Fitzgerald (1982), 457 U.S. 731, 102

S.Ct. 2690, 73 L.Ed.2d 349 (absolute Presidential immunity);

Smith v, McDonald (C.A.4, 1984), 737 F.2d 427, affirmed sub

nom. McDonald v, Smith (1985), 472 U.S. 479, 105 S.Ct. 2787,

_ 86 L.Ed.2d 384 (absolute immunity); Kennedy v. Cleveland

- (C.A.6, 1986), 797 F.2d 297; Mitchell v. Forsyth (1985), 472

U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (qualified immunity of

_ Attorney General from suit).

“The critical question, following Mitchell, is whether, the

essence, of the claimed right is a right not to stand trial. * * *

This question is difficult because in some sense, all litigants who

have a meritorious pretrial claim for dismissal can reasonably

claim a right not to stand trial. But the final-judgment rule

requires that except in certain narrow circumstances in which the

right would be , irretrievably lost, absent an immediate appeal,

, 472 U.S. 424, 431, 105 S.Ct.

2757, 2761, 86 L.Ed.2d 340 (1985), litigants must abide by the

district court’s judgments, and suffer the concomitant burden of a

trial, until the end of proceedings before gaining appellate

review." Van Cauwenberghe, supra, 486 U.S. at 524, 108 S.Ct.

at 1950. Thus, the focus of the federal cases is whether the

_ individual has a right not to stand trial simply because of who he

' is, @.g., whether he is protected from standing trial because of an

_ immunity attaching to the office he holds. Nixon, supra;

' Mitchell, supra. The “essence” of this personal iramunity, for

example, that the President of the United States is absolutely

immune from being haled into court for all acts within the outer

perimeters of his duties of office “is effectively lost if a case is

Oi APL eh tae ety ates.

io eee

OR Gh ADIN A ARE Ral st A oe

All

erroneously permitted to go to trial.” Mitchell, supra, 472 U.S.

at 526, 105 S.Ct. at 2815.

The “essence” of the claimed “immunity” in the case before

us today is that when a person, any person, is haled into court on

a libel claim he will not be liable for his actions or statements if

they constitute protected opinion rather than assertions of fact.

Such a claimed right is not lost if a motion for summary judgment

fails and a trial ensues. The right to be free from liability for

expressions of opinion can certainly be vindicated on appeal. The

issue is eminently reviewable on appeal from final judgment, and

thus is not an immediately appealable collateral order.

For this same reason, the denial of summary judgment in

defamation actions is not "an order made in a special proceeding,”

pursuant to R.C. 2505.02, for” [a] prime determinant of whether

. This was at least implicitly recognized by the court in Time,

Inc. v. McLaney (C.A.5, 1969), 406 F.2d 565, 566, where, in a libel action

against a magazine publisher, the district court denied the publisher,s motion for

summary judgment, and the publisher appealed:

"We are here presented with an unusual appeal, since it has

heretofore hardly ever fallen to the lot of this court to

consider an appeal from the denial by the trial court of a

motion for summary judgment. Prior to the adoption by the

Congress of the 1958 Amendment to 28 U.S.C.A. 1292, by

adding Section (6), no appeal could be taken from such an

order by the trial court because it was not a final order. Now,

however, this court has jurisdiction to entertain such an appeal

when the provisions of Section (b) are complied with.

“Here the trial court made the required certificate and this

court, on December 7, 1967, entered its order granting the

application provided for under Section 1292(b).” (Emphasis

sic.)

We hasten to add that in addition to the federal collateral order rule

being of no effect in this state, our Appellate Rules do not contain a mechanism

for certification by the trial court of non-final, interlocutory appeals analogous

to Section 1292(b), Title 28, U.S.Code. See App.R. 4(A).

Al2

a particular order is one made in a special proceeding is the

practicability of appeal after final judgment. * * * " Amato,

supra, 67 Ohio St.2d at 258, 21 0.0.3d at 161, 423 N.E.2d at

455-456, quoting Bernbaum, supra, 62 Ohio St.2d at 447, 16

0.0.3d at 463, 406 N.E.2d at 534.

To hold, as did the court below, that the denial of a motion

for summary judgment in a defamation action is a final appealable

order would invite a multitude of interlocutory appeals in civil

actions of all types, under the guise that such rulings were made

in “special proceedings.” This court has been quite careful in the

past to avoid such a result. See Amato, supra, 67 Ohio St.2d at

257, 21 0.0.3d at 161, 423 N.E.2d at 455; Bernbaum, supra, 62

Ohio St.2d at 447, 16 0.0.3d at 463, 406 N.E.2d at 534. Appel-

lees, claim is not in the nature of an immunity from suit, but is

simply an assertion of a defense on the merits of the action itself.

If a trial court determines, as here, that a genuine issue exists as

to whether the allegedly libelous statements were not protected

expressions of opinion, then summary judgment must be denied,

and such denial “is reviewable on appeal by the movant [only]

from a subsequent adverse final judgment.” Balson v, Dodds,

supra, at paragraph one of the syllabus.

Because the denial of appellees, motions for summary judg-

ment was not made in a special proceeding and is not otherwise a

final appealable order, the court of appeals was without juris-

diction to hear appellees’ appeals. Accordingly, the judgment of

the court of appeals applicable to appellees is reversed, and the

cause is remanded to the trial court for further proceedings.

Judgment reversed and cause remanded.

HOLMES, Acting C.J., and GLASSER, CACIOPPO,

HERBERT R. BROWN and RESNICK, JJ., concur.

PUTMAN 2nd SHANNON, JJ., dissent.

NORMAN J. PUTMAN, J., of the Fifth Appellate District,

sitting for MOYER, C.J.

Al3

RAYMOND E. SHANNON, J., of the First Appellate

District, sitting for SWEENEY, J.

GEORGE M. GLASSER, J., of the Sixth Appellate District,

sitting for DOUGLAS, J.

MARY CACIOPPO, J., of the Ninth Appellate District,

sitting for WRIGHT, J.

PUTMAN, Justice, dissenting.

I must respectfully dissent. The fear that judges will have to

work harder cannot be permitted to stifle robust political criticism

of the judiciary. This lawsuit brought by a former member of the

judiciary seeking to punish in the courts a citizen who had been

critical was doomed to failure when, after it was filed, the United

States Supreme Court, on February 24, 1988, decided Hustler

Magazine v, Falwell (1988), 485 U.S. 46, 108 S.Ct. 876, 99

L.Ed.2d 41.

However despicable or unjustified it may be, political criti-

cism must remain free from the expense of avoidable repetitive

litigation.

The First Amendment’s guarantee of free speech carries with

it the mandate that the channels for political change be left open.

Apprehension of the expense of defending libel suits imposes a

self-censorship upon political critics.

I would find jurisdiction to have existed in the court of

appeals from Section 3(B)(1)(f), Article IV of the Ohio Consti-

tution, “original jurisdiction * * * [iJn any cause upon review as

may be necessary to its complete determination,” and put a

merciful rest to this lawsuit.

The majority opinion elevates form over substance. When

this case goes back for trial, there can be ory one outcome if the

trial court applies the law correctly. The court of appeals has

already reached the correct conclusion. It had jurisdiction directly

from a constitutional amendment adopted May 7, 1968. No issue

of "special proceeding” or Civ. R. 54(B) is involved. The judi-

Al4

ciary must not let itself fall into slumber only to wake to find

itself tethered by Lilliputians with bonds fashioned from the

remnants of outmoded ritual. The visionaries who drew Section

3(B) (1)(f), Article IV must have foreseen what we have before us

in this case. The end to be suffered by plaintiff is, in law,

inevitable. Let his case be interred decently now. No purpose is

served by wringing hands in helpless piety at the graveside.

The polestar that should guide our judgment is not whether

the “floodgates” of appeals are opened but whether the “flood-

gates” for free speech are kept open.

SHANNON, J., concurs in the foregoing dissenting opinion.

Al5S

JOURNAL ENTRY AND OPINION

OF THE EIGHTH DISTRICT COURT

OF APPEALS

CUYAHOGA COUNTY, OHIO

(filed August 4, 1988)

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

James P. Celebrezze,

Plaintiff-Appellant —: Case Nos. 53864 and 53865

Cross-Appeliee ;

v. JOURNAL ENTRY

- AND

Robert E. Netzley et al.,_—: OPINION

Defendant-Appellees

Cross-Appellants

DATE OF ANNOUNCEMENT

OF DECISION: AUGUST 4, 1988

CHARACTER OF PROCEEDING: Civil appeal from Common

Pleas Court Case No. 086,740

JUDGMENT: AFFIRMED IN PART AND

REVERSED IN PART.

DATE OF JOURNALIZATION:

APPEARANCES:

For Plaintiff-Appellant, Don C. Iler

Cross-Appellee: DON C. ILER CO., L.P.A.

1640 Standard Building

Cleveland, Ohio 44113

Se ee ws

For Defendant-Appellee,

Cross-Appellant, Robert E.

Netzley

For Defendant-Appellees,

Plain Dealer Publishing

Co. and Mary Anne

Sharkey:

For Defendant-Appellee,

Cross-Appellant, Miami

County Republican

Committee:

Al6

Louis Paisley

WESTON, HURD, FALLON,

PAISLEY & HOWLEY

2500 Terminal Tower

Cleveland, Ohio 44113

Belinda J. Scrimenti

BAKER & HOSTETLER

3200 National City Center

Cleveland, Ohio 44114

Robert J. Huffman

HUFFMAN, LANDIS, WEAKS &

LOPEZ

103 N. Miami Street

West Milton, Ohio

Al7

STILLMAN, P.J.:

This appeal arises as a result of an action for libel, invasion

of privacy and the intentional infliction of emotional distress filed

by appellant/cross-appellee, James P. Celebrezze, against appel-

lees, Plain Dealer Publishing Co. (hereinafter "Plain Dealer") and

Mary Anne Sharkey (hereinafter "Sharkey") and against cross-

appellants, Robert E. Netzley (hereinafter “Netzley") and Miami

County Republican Committee (hereinafter the "Committee”).

Appellant was an Associate Justice on the Supreme Court of

Ohio beginning January 11 , 1983, and was the Democratic

nominee for that position in the November, 1984 general election.

The campaigns for the positions on the supreme court were

vigorous and generated much public debate.

Netzley is a member of the Ohio House of Representatives

from Miami County and has been an elected official for twenty-

five years. At the time of this controversy Netzley was a member

of the House of Representatives’ Finance Appropriation Com-

mittee, Ways and Means Committee, Taxation and Insurance

Committee, and State Controlling Board. Netzley is also active

in Ohio Republican politics, and is the State Committeeman for

the Eighth Congressional District and Executive Committee

CARAS UNS

Al8

Chairman of the Republican party in Miami County. As Exec-

utive Committee Chairman Netzley has the responsibility of

supervising and organizing campaigns for local Republican can-

didates and assisting in statewide Republican campaigns.

Prior to the 1984 general election, on behalf of the Com-

mittee, Netzley authored a campaign brochure’ which was mailed

to all registered voters in Miami county. One-sixth of the bro-

chure was devoted to the Ohio supreme court rules. The brochure

provided, in relevant part, as follows:

What others say about the Ohio Supreme Court:

’The Ohio Supreme Court now being admini-

stered by Chief Justice Frank Celebrezze and his cronies

is the crudest, most partisan, most vindictive in

memory, and the most dangerous. ...’ "Only the

voters of Ohio can stop it.’

Dayton Daily News 10-7-84

It’s no wonder that some are calling Ohio’s

Justice System the "MAFIA FAMILY’ Court. Take a

look. Frank Celebrezze, Chief Justice. Brother Jimmy

Celebrezze, Associate Justice. Cousin Tony Celebrezze,

Ohio Attorney General, and Frank Celebrezze’s,

' ‘The entire brochure, which was reproduced from appellant's exhibits

to his brief in opposition te Netzley’s motion for summary judgment, is appended

hereto as Exhibit "A".

Al9

“crony” Angelo Gagliardi, the intimidator in charge of

the Ohio Disciplinary Council.

Considerable controversy arose after the brochure became

public. James Ruvolo, State Democratic Party Chairman, com-

plained about the brochure to Joseph Rice, a reporter and then

Acting State Editor of The Plain Dealer newspaper. Rice in-

formed Sharkey, a reporter in The Plain Dealer’s Columbus office

who had been assigned to cover the 1984 Ohio supreme court

races. Sharkey had already done extensive reporting on the

Administration of the court and the state judicial system by then

Chief Justice Frank D. Celebrezze, appellant’s brother, and the

ongoing dispute between the court and the Ohio State Bar As-

sociation. Sharkey had not yet seen the brochure.

After the election, in which appellant was defeated, Ruvolo

told Rice that he was considering filing a complaint with the Ohio

Elections Commission. Ruvolo also appeared on the Columbus

television show "Issue," a political debate program, to analyze the

election results and at that time he expressed his distaste for the

brochure’s contents regarding the Ohio supreme court.

On November 14, 1984, during a post-election interview with

Attorney General Anthony J. Celebrezze, Jr., the Attorney

a ee eee

A20

General gave Sharkey a copy of the brochure and told her that

"as a lawyer {he felt] it [was] libelous.” (Sharkey Affidavit at 4.)

After the interview, Sharkey spoke with Rice and they both agreed

that the brochure had created considerable controversy. Rice

suggested doing a story on the brochure and its controversy for

the newspaper.

‘After investigating the matter further, Sharkey and Rice

prepared an article which was published in The Plain Dealer on

November 16, 1984, in different editions under two headlines:

"GOP boss firm on court-Mafia tie" and “Netzley firm on

Celebrezze-Mafia ad."* The article provided that:

COLUMBUS -- State Rep. Robert E. Netzley,

chairman of the Miami County Republican Party, said

yesterday he is not backing down from his organi-

zation’s election brochure which said Ohio’s justice

system is run by the "Mafia family.’

The brochure, mailed to Miami County Repub-

licans before the Nov. 6 election, said

"It’s no wonder that some are calling Ohio’s

Justice System the "MAFIA FAMILY’ Court. Take a

look. Frank Celebrezze, Chief Justice, Brother Jimmy

> These articles are reproduced as they appeared in the newspaper from

appellant’s exhibits attached to his brief in opposition to Plain Dealer’s and

Sharkey’s motion for summary judgment and are appended hereto as Exhibits "B"

and "C,” respectively.

A21

Celebrezze, Associate Justice, Cousin Tony Celebrezze,

Ohio Attorney General and Frank Celebrezze’s ’crony’

Angelo Gagliardo, the intimidator in charge of the Ohio

Disciplinary Counsel.’

Democrats James Celebrezze and Cuyahoga

County Common Pleas Judge John E. Corrigan lost to

Republicans Craig Wright, a Franklin County Common

Pleas Judge, and Appeals Judge Andy Douglas of

Toledo, respectively Nov. 6.

In a letter, Frank E. Bazler, president of the

Ohio State Bar Association and a Miami County

Republican, called on Netzley and the Miami County

Republican Party to apologize to the Celebrezzes and

Gagliardo.

Frankly, I am appalled by that paragraph and

deplore the poor judgment in its inexcusable use,’ Bazler

wrote.

Netzley, R-6B, of Laura, yesterday rejected

Bazler’s demand for an apology.

"I’m not apologizing to that court, I tell you’ he

said. "That’s the way we feel about the court and the

whole system.’

Asked who the ‘some’ in the brochure referred

to, Netzley said ’A lot of people in Miami County feel

that way.’

Attorney General Anthony J. Celebrezze Jr.

was dismayed by the brochure and said yesterday ‘as a

lawyer, I feel it is libelous.’

Chief Justice Frank D. Celebrezze said, ‘I

thought that type of name-calling had gone out with the

advent of the 20th century . . . that was the type of

advertising we had to contend with.’

ah eset OS ai edit ten 0 aS

A22

He said he does not know anyone in the Mafia.

Bazler’s defense of the Celebrezze family

pleased the chief justice.

*That was very gentlemanly of him,” he said.

Things like this are the type of thing the bar association

ought to be interested in.’

Frank Celebrezze and Bazler are to meet

Wednesday to discuss the two-year-old feud between the

court and bar association. Celebrezze had previously

refused requests to meet with bar officials.

Dennis Whalen, spokesman for the state bar,

called the meeting ‘a positive development.’

On February 6, 1985, appellant commenced this action for

libel, invasion of privacy and intentional infliction of emotional

distress. The court dismissed the privacy claim and the defendants

moved for summary judgment on the remaining claims. Netzley

and the Committee relied upon Netzley’s deposition, the brochure,

a transcript of appellant’s testimony, certain political definitions

and numerous news articles. Plain Dealer and Sharkey relied

upon the affidavits of Sharkey and Rice, as well as excerpts from

Netzley’s deposition and eleven additional attached exhibits.

Appellant, in his briefs in oppesition to the summary judgment

A23

motions, relied upon the depositions of Sharkey,’ Rice,‘ Douglas

F. Kramer (a copy editor for Plain Dealer) and Netzley. On April

28, 1987, in a lengthy and well-written opinion, the court granted

summary judgment in favor of Plain Dealer and Sharkey and

denied summary judgment for Netzley and the Committee.

Pursuant to Civ. R. 54(B), the court indizated its intent to make

its decisions final and determined there was no just reason for

delay. The losing parties timely appealed.

> Plain Dealer and Sharkey have urged this Court to disregard the

depositions of Sharkey and Rice because the depositions were not signed by

Sharkey or Rice and their signatures were not waived nor were they signed by

the court reporter with a statement regarding the absence of the witnesses’

signatures as required by Civ. R. 30. Although appellees raised this point at the

trial level in a footnote in their reply brief to appellant's brief in opposition to

appellees’ summary judgment motion, no motion to suppress the depositions or

parts thereof was filed as required by Civ. R. 32(D)(4) and 30(E). However,

* objection may be construed as the motion to suppress, Nickey v.

Brown (1982), 7 Ohio App. 3d 32, 36, 454 N.E.2d 177, and in that regard

should have been granted. Sharkey and Rice should have had the opportunity to

review and sign their depositions pursuant to Civ. R. 30(E). The disposition of

this case would be the same, however, even if the depositions were considered.

A24

I. Iurisdicti

The Constitution of the State of Ohio confers jurisdiction on

this Court to review appeals of final orders. Ohio Const. art. IV,

sec. 3(B)(2). A final order is defined by statute as:

{aJn order that affects a substantial right in an

action which in effect determines the action and prevents

a judgment, an order that affects a substantial right made

in a special proceeding or upon a summary application

in an action after judgment, cr an order that vacates or

sets aside a judgment or grants a new trial... .

stably Botaders aaa

i eee te oem

R.C. 2505.02. Ordinarily, the denial of a motion for summary

judgment does not constitute a final appealable order. Reison v.

| Dodds (1980), 62 Ohio St. 2d 287, 405 N.E.2d 293; Ohio Edison

Co. v. Babcock & Wilcox Co, (Mar. 20, 1980), Cuyahoga App.

i No. 40672, unreported. Netzley and the Committee argue,

however, that the court’s order denying their summary judgment

motions affected a substantial right made in a special proceeding

| and was therefore immediately appealable.*

* ‘The trial court’s use of the Civ. R. 54(B) language cannot convert an

otherwise nonappealable interlocutory order into a final order. Norvell v.

Cuyahoga County Hospital (1983), 11 Ohio App. 3d 70, 463 N.E.2d 111.

A25

The precise issue before this Court is whether the trial court’s

order denying summary judgment in a defamation action on the

ground that the alleged libelous statement was not an expression

of opinion but an actionable statement of fact affects a substantial

right in a special proceeding?

Due to the policy of promoting the prompt and orderly

disposition of lawsuits, the Supreme Court of Ohio generally has

been reluctant to expand the term “special proceeding” to include

the immediate review of interlocutory orders during the pendency

of a civil action. Bernbaum v. Silverstein (1980), 62 Ohio St. 2d

445, 447, 406 N.E.2d 532. However, the court has retained some

flexibility and has recognized that certain rulings made during the

pendency of a civil action require immediate review. See Tilberry

y. Body (1986), 24 Ohio St. 3d 117, 493 N.E.2d 954 (judicial

dissolution of partnership); Humphry v, Riverside Methodist

Hospital (1986), 22 Ohio St. 3d 94, 488 N.E.2d 877 (discovery

order compelling disclosure of information concerning hospital-

patient confidentiality and statutory privilege). In order to

determine whether a particular order affects a substantial right in

a special proceeding, a court must weigh “the harm to the "prompt

and orderly disposition of litigation,’ and the consequent waste of

ite hee od Sa eee

A26

judicial resources, resulting from the allowance of an appeal, with

the need for immediate review because appeal after final judgment

is not practicable.” Amato v. General Motors Corp, (1981), 67

Ohio St. 2d 253, 258, 423 N.E.2d 452. In other words, if “there

is an appreciable need for immediate review, . . . the ordinary

course of a proceeding to final adjudication [may] be interrupted.”

Humphry, 22 Ohio St. 3d at 96.

The substantial right affected in this case is the guaranteed

right to express an opinion pursuant to the first amendment of the

Constitution of the United States and Article I, Section 11 of the

Constitution of the State of Ohio. Since expressions of opinion

are afforded absolute immunity from liability, see Scott v. News-

Herald (1986), 25 Ohio St. 3d 243, 250, 496 N.E.2d 699, and

our disposition infra of Netzley’s and the Committee’s first

assignments of error, the trial court’s order effectively denied

appellants this guarantee.

Concommitant with an absolute immunity from liability (the

possible consequence of litigation) would be the protection from

the burden of defending litigation. Immunity from damages

necessarily includes immunity from trial. Deferring the resolution

of a claim of absolute immunity from suit until after trial defeats

A27

the substance of the privilege itself. Smith v. McDonald (4th Cir.

1984), 737 F.2d 427, 428. An appeal after judgment simply

would not be practicable to vindicate this harm. Moreover, as in

Tilberry, judicial resources will actually be conserved by allowing

an appeal of this question of law early on. Judicial resources at

the trial level are also conserved if alleged defamatory remarks

are adjudicated to be nonactionable opinions since the litigation

would be ended. Finally, a “chilling effect” or self-censorship in

first amendment cases is more likely to occur without an initial

exhaustive review of whether certain material is immune from suit

due to the burdens of defending lawsuits through trials which may

have been avoided by a simple immediate appeal of the initial

question of law.

Federal courts, although governed by different laws

concerning final orders, see 28 U.S.C. 1291, have permitted

appeals of orders denying motions asserting an absolute immunity

defense pursuant to their collateral order doctrine. See, ¢.g.,

Nixon v. Fitzgerald (1982), 457 U.S. 731; Kennedy v. City of

Cleveland (6th Cir. 1986), 797 F.2d 297; Smith v. McDonald (4th

Cir. 1984), 737 F.2d 427, aff'd (1985), McDonald v. Smith, 472

A28

U.S. 479. In discussing the immediate appealability of a denial of

qualified immunity, the United States Supreme Court stated that:

The entitlement is an immunity from suit rather than a

mere defense to liability; and like an absolute immunity,

it is effectively lost if a case is erroneously permitted to

go to trial. Accordingly, the reasoning that underlies

the immediate appealability of an order denying absolute

immunity indicates to us that the denial of qualified

should be similarly appealable: in each case,

the district court’s decision is effectively unreviewable

on appeal from a final judgment.

Mitchell v. Forsyth (1985), 472 U.S. 511, 526-27 (emphasis in

original).

Based upon the foregoing analysis, we hold that a trial court

order denying a defendant as a matter of law the absolute im-

munity accorded expressions of opinion in a defamation action

affects a substantial right and is made in a special proceeding.

The order denying absolute immunity is therefore a final ap-

pealable order.

A29

Il. Netzley and Committee Appeal

Netzley’s and the Committee’s assignments of error which

are substantially identical will be addressed together. Their first

assignments of error are respectively that:

THE TRIAL COURT ERRED IN INTERPRETING

AND APPLYING THE SCOTT/OLLMAN

"TOTALITY OF THE CIRCUMSTANCES” TEST

AND IN DENYING APPELLANT THE DEFENSE OF

ABSOLUTE IMMUNITY ACCORDED TO EXPRES-

SIONS OF OPINION.

THE TRIAL COURT ERRED IN DETERMINING

THAT THE STATEMENTS WERE STATEMENTS |

OF FACT RATHER THAN CONSTITUTIONALLY

PROTECTED OPINION.

Both the United States Supreme Court and the Supreme Court

of Ohio have recognized as a general rule that expressions of

opinion will not subject a party to liability for defamation. Gertz

v. Robert Welch, Inc, (1974), 418 U.S. 323, 339-40; Scott v.

News-Herald (1986), 25 Ohio St. 3d 243, 250, 496 N.E.2d 699.

The Ohio supreme court adopted a totality of circumstances test

based on the test announced in Ollman v. Evans (D.C. Cir. 1984), )

750 F.2d 970, cert. denied (1985), 471 U.S. 1127, to distinguish

between statements of fact and expressions of opinion. Scott, 25

Ohio St. 3d at 250- Four factors are to be considered when

A30

examining a statement: (1) the specific language used; (2) the

verifiability of the statement; (3) the general context of the

statement; and (4) the broader context in which the statement

appeared. Ig. This examination to determine whether a statement

is opinion or fact is a matter of law for the court to decide. After

considering all four factors, the trial court decided that each factor

led to the conclusion that the following statements were statements

of fact:

It’s no wonder that some are calling Ohio’s

Justice System the "MAFIA FAMILY’ Court. Take a

look. Frank Celebrezze, Chief Justice. Brother Jimmy

Celebrezze, Associate Justice. Cousin Tony Celebrezze,

Ohio Attorney General, and Frank Celebrezze’s, ’crony’

Angelo Gagliardi, the intimidator in charge of the Ohio

Disciplinary Counsel.

This Court’s analysis, however, leads to the opposite conclusion.

Under the first prong of the test, the specific language used

must be examined “as such language is commonly understood . .

. .” Id. at 250-51. The particularly offensive language here is the

word “mafia.” Although Netzley and the Committee have argued

that the word “mafia” has multiple meanings, e.g., to depict

cronyism in a political sense, we agree with the trial court that the

common meaning of the word "mafia" is an organized under-

ground criminal syndicate. Moreover, it is common to associate

a aaa

A31

mafia members with those of Italian descent. The statement herein

emphasizes that association. It is not surprising, therefore, that

the lower court concluded that the use of the word "mafia" in this

case implicated appellant with the mafia and its unsavory in-

fluence. Such a representation by the specific offensive language

herein standing alone is not an opinion immune from potential

liability. The remaining factors, however, convince this Court

that Netzley’s and the Committee’s publication was merely an

expression of opinion.

The second prong of the totality test concerns the verifiability

of the statement. Nothing is stated or implied in the statement to

substantiate the implication that appellant is connected with the

mafia. The words "some are calling” are broad and too general

to establish the verifiability of the implication or to imply that

undisclosed facts exist to verify the statement. The statement is

simply not objectively capable of proof or disproof. The trial

court indicated at p. 9 of its opinion that the “statement is ab-

solutely not verifiable" and we agree. Accordingly, these state-

ments are more likely to be expressions of opinion. See id. at

251-52. "“[A] reader cannot rationally view an unverifiable

Statement as conveying actual facts.” Ollman, 750 F.2d at 981.

| |

a NRC ee eM Ctr tt ere iL aM) se

A32

The third factor requires an examination of the context in

which the statements occurred. The trial court focused on the

noted source of the language, i.e., the Dayton Daily News, rather

than the language itself. The Supreme Court of Ohio has indi-

cated that “[o]bjective cautionary terms, or ‘language of ap-

parency” places a reader on notice that what is being read is the

opinion of the writer." Scott, 25 Ohio St. 3d at 252; see

Ollman, 750 F.2d at 983. In addition, the language surrounding

the statements in issue "may signal that a specific statement which,

standing alone, would appear to be factual is in actuality a

statement of opinion.” QOllman, 750 F.2d at 982. The focus of

inquiry here is more properly on what is being said in addition to

the alleged defamatory remarks rather than only upon who is

making the comment in order to judge the context in which they

are presented.

The column in which the statements in this care appeared is

entitled, “It’s Time The People Judge The Court." This title

clearly calls for the readers/voters to opine and render a decision

about the supreme court. The column then goes on to convey

"[w)hat others say” about the Republican candidates for the court

and “[wJhat others say about the Ohio Supreme Court." “What

A33

others say" certainly puts a reader on notice that what is to follow

is likely to be the opinion of others. The lead in paragraph to the

Statements in issue sets forth how others described the court:

"*The Ohio Supreme Court . . . is the crudest, most partisan,

most vindictive in memory, and the most dangerous... .’"

Clearly opinion. The alleged defamatory language that follows,

"It’s no wonder that some are calling Ohio’s Justice System the

"MAFIA FAMILY’ Court," conveys the subjective belief others

have drawn from the characteristics attributed to the court. The

statement analogizes Ohio’s justice system to a mafia operation,

i.e., intimidating, vindictive, behind-the-scenes, etc, and capi-

talizes upon the Italian surnames to bolster the analogy. When

read in context, it is apparent that no factual assertions of mafia

connections were being made or implied but rather only hyperbolic

opinions describing attitudes about the operation or style of the

court. |

The last factor to consider is the broader context of the

statements since certain types of writings by custom or convention

alert the reader that what is being read is more likely to be

opinion and not fact. Ollman, 750 F.2d at 983; Scott, 25 Ohio St.

3d at 253; see, ¢.g., National Rifle Association v. Dayton News-

lcd Oven br btarpetied

A34

papers, Inc, (S.D. Ohio 1983), 555 F. Supp. 1299 (editorial).

The statements in this case, as recognized by the trial court, were

composed for a political campaign brochure. The pamphlet was

distributed prior to an election which had already generated a great

amount of controversy and concern, in part due to the feuding

between the Ohio supreme court and the Ohio State Bar As-

sociation. The purpose of the brochure was to promote the

election of Republican candidates and defeat the election of

Democrat nominees. It could hardly be expected that any Demo-

crat candidates would be glorified within the pages of a pamphlet

urging the election of Republicans and published by the local

Republican party. Similarly, any Republican candidate for office

would not expect fair representation in a publican distributed by

the Democrat party. Readers should expect rampant partisan

Opinion, puffery and bias in such one-sided vehicles of com-

munication. The fact that the campaign brochure was authored by

a prominent Republican and disseminated by the Committee only

A35

heightens the expectation of partial political hyperbole rather than

diminishing it as the trial court concluded.*

Based upon the totality of circumstances it is our view that

Netzley’s and the Committee’s statements were expressions of

opinion and therefore entitled to protection under the Constitution

and the Ohio Constitution. Accordingly, these assignments or

error are sustained.

Netzley’s and the Committee’s second assigned errors are

respectively that:

THE TRIAL COURT ERRED IN INTERPRETING

AND APPLYING THE “INNOCENT CON-

STRUCTION" RULE AND IN DENYING APPEL-

LANT THE DEFENSE ACCORDED TO WORDS

THAT ARE SUSCEPTIBLE TO AN “INNOCENT

CONSTRUCTION."

THE TRIAL COURT ERRED IN DETERMINING

THAT THE STATEMENTS WERE DEFAMATORY

AS A MATTER OF LAW RATHER THAN SUBJECT

TO AN INNOCENT CONSTRUCTION.

* This Court, of course, is not condoning all statements in political

literature. As the court stated in Ollman, “[wJhile such a rule would have the

advantage of simplicity and clarity, it could too readily become a license to

libel." 750 F.2d at 987, n. 33.

ha ie ie et ee

A36

The “innocent construction” rule provides that “if allegedly

defamatory words are susceptible to two meanings, one defa-

matory and one innocent, the defamatory meaning should be

rejected, and the innocent meaning adopted." Yeager v. Local

Union 20 (1983), 6 Ohio St. 3d 369, 372, 453 N.E.2d 666.

Words should be given their plain and ordinary meaning when

evaluating them and should be read in context of the whole in

which they were reported, rather than in isolation. England v.

Automatic Canteen Company of America (6th Cir. 1965), 349

F.2d 989, 991 see Smith v. Huntington Publishing Co, (S.D. Ohio

1975), 410 F. Supp. 1270, aff'd (6th Cir. 1976), 535 F.2d 1255.

After reviewing the alleged defamatory words in this case,

we believe they are not susceptible of an innocent construction.

Although the word "Mafia" has more than one definition, see,

e.g., Random House Dictionary 1155 (2d ed. 1987), we agree that

the common meaning would be the criminal organization. The

paragraph could thus be construed as implicating an association

between the Celebrezze family and the criminal underworld

organization. No innocent construction is apparent. Accordingly,

these assignments or error are overruled.

A37

Cc.

Netzley’s and the Committee’s third assigned errors are

respectively that:

THE TRIAL COURT ERRED IN FAILING TO HOLD

THAT APPELLANT’S STATEMENT IS NEITHER

LIBELOUS PER SE NOR PER QUOD.

THE TRIAL COURT ERRED IN FAILING TO HOLD

THE APPELLANT’S STATEMENT IS NEITHER

LIBELOUS PER SE NOR PER QUOD.

The common law distinctions between libel per se-and libel

per quod have become virtually irrelevant in libel actions brought

by public officials. What must be proven by a public official

plaintiff in a libel suit is clear, L.e., that, by clear and convincing

evidence, the alleged defamatory statement was made with actual

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

Dupler v. Mansfield Journal Co., Inc, (1980), 64 Ohio St. 2d

116, 413 N.E.2d 1187, cert. denied (1981), 452 U.S. 962.

Liability without proof of fault is no longer available to a public

official plaintiff in light of the actual malice standard of proof.

The trial court applied the proper standard and did not err by

failing to rule with respect to the common law distinctions.

Accordingly, these assignments of error are overruled.

A38

Netzley’s fourth and last assigned error is that:

THE TRIAL COURT ERRED IN FAILING TO HOLD

THAT APPELLANT IS NCT SUBJECT TO AN

INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS ACTION OR IS ABSOLUTELY IMMUNE

THEREFROM.

Subsequent to the trial court’s Cecision in this case, the

United States Supreme Court held that “public officials may not

recover for the tort of intentional infliction of emotional distress

by reason of [offensive] publications . . . without showing in

addition that the publication contains a false statement of fact

which was made with ‘actual malice,” Le,, with knowledge that

the statement was false or with reckless disregard as to whether or

not it was true.” Hustler Magazine v. Falwell (1988), 108 S. Ct.

876, 882; see Stepien v. Franklin (Apr. 28, 1988), Cuyahoga

App. No. 52437 (Ealwell applied to public figure). In order to

recover for the intentional infliction of emotional distress, cross-

appellee is required to demonstrate first that the publication

contains a false statement of fact. Since Netzley’s and the

Committee’s publication contained expressions of opinion and not

statements of fact, see supra our disposition of Netzley’s and the

Committee’s first assignments of error, cross-appellee’s action for

A39

the intentional infliction of emotional distress must fail. Ac-

cordingly, this assignment of error is sustained.

Ill. Celebrezze Appeal

The trial court granted summary judgment in favor of Plain

Dealer and Sharkey based on the privilege of neutral reportage.

Therefore, we will first address appellant’s second assigned error

which is that:

THE REPUBLICATION BY DEFENDANTS

SHARKEY AND PLAIN DEALER IS NOT PRO-

TECTED BY THE DOCTRINE OF "NEUTRAL

REPORTAGE.”

Initially, since the statements herein have been determined

to be nonactionable expressions of opinion, see supra our dis-

position of Netzley’s and the Committee’s first assignments of

error, no liability may arise for their accurate republican by Plain

Dealer and Sharkey. Even if the statements were not protected

opinion, the republication of those statements would be protected

by the privilege of neutral reportage as determined by the trial

court. .

—or

A40

The privilege of neutral reportage permits the accurate and

disinterested reporting of newsworthy accusations without regard

to the republisher’s views toward their validity. Edwards v.

National Audubon Society, Inc, (2d Cir.), cert. denied sub nom.

(1977), Edwards v. New York Times Co,, 434 U.S. 1002; see

Grafton v. American Broadcasting Co, (1980), 70 Ohio App. 2d

205, 215, 435 N.E.2d 1131. The privilege cannot be relied upon,

however, if the republisher “espouses or concurs in the charges

made by others, or . . . deliberately distorts [the] statements to

launch a personal attack of his own on a public figure... .”

Edwards, 556 F.2d at 120.

There is no question that the statements herein were news-

worthy. The State Democratic Party Chairman, James Ruvolo,

complained about the brochure to Plain Dealer both before and

after the November election and indicated he was considering

filing a complaint with the elections commission. Mr. Ruvolo also

commented on the brochure on a Columbus television show after

the election. Attorney General Anthony Celebrezze, Jr. gave a

copy of the brochure to Sharkey during a post-election interview

and indicated he ‘thought it was libelous. In addition to the

controversy generated by the brochure itself, there was the

A4l

ongoing tension between the Ohio supreme court and the Ohio

State Bar Association. Therefore, it was also newsworthy that the

then president of the Bar Association sought an apology from

Netzley and the Committee for the brochure’s critical paragraph.

Prior to publishing the articles in question, Sharkey, with the

assistance of Joseph Rice, then Acting State Editor, thoroughly

investigated the story behind the brochure. Sharkey spoke with

the Bar Association’s public relations’ officer and obtained a copy

of a letter written by the Association’s president to Netzley

requesting an apology to the Celebrezzes and Angelo Gagliardo.

Sharkey also spoke with Netzley for his comments. Rice con-

tacted former Chief Justice Celebrezze and discussed his com-

ments.

After reviewing the evidence, we reach the same conclusion

as the trial court, i.e., that the controversy over the brochure was

fairly and accurately reported. Although the headline "GOP boss

firm on court-Mafia tie” could have been phrased to more ac-

curately reflect the story beneath, the headline cannot be read in

isolation but must be read in context with the story it represents.

The article itself contained quotes from the brochure and several

quotes from those interviewed, including the Chief Justice’s denial

EEE ee

A42

of any Mafia association. No evidence was presented demon-

strating that Plain Dealer or Sharkey concurred in the statements

made or deliberately distorted the statements to personally attack

appellant.

The principles embodied in the first amendment are too

precious to give way under the circumstances in this case. We |

agree with the United States Court of Appeals for the Second

Circuit when it stated that:

[T]he interest of a public figure in the purity of his

reputation cannot be allowed to obstruct that vital pulse

of ideas and intelligence on which an informed and self-

governing people depend. It is unfortunate that the

exercise of liberties so precious as freedom of speech

and of the press may sometimes do harm that the state

is powerless to recompense: but this is the price that

must be paid for the blessings of a democratic way of

life.

Edwards, 556 F.2 at 122. Accordingly, this assignment of error

is overruled.

Appellant’s first assigned error is that:

THE TRIAL COURT ERRED IN GRANTING SUM-

MARY JUDGMENT FOR DEFENDANT’S SHARKEY

AND PLAIN DEALER WHEN THE PLAINTIFF

PRESENTED SOME EVIDENCE OF ACTUAL

MALICE.

A43

Appellant contends that he presented sufficient evidence of actual

malice to withstand summary judgment against him, specifically

that Plain Dealer and Sharkey had knowledge of the falsity of the

statements in the brochure prior to republishing them. The trial

court, however, made no determination on this particular issue

since it relied upon the privilege of neutral reportage in granting

summary judgment in favor of appellees. Since we are affirming

the trial court’s judgment on that basis, we, too, need not reach

the actual malice issue. Accordingly, this assignment of error is

overruled.

Appellant’s las assigned error is that:

THE TRIAL COURT ERRED IN GRANTING SUM-

MARY JUDGMENT TO DEFENDANTS SHARKEY

AND PLAIN DEALER ON THE PLAINTIFF’S

CLAIM FOR INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS.

This assignment of error is overruled in accordance with our

disposition supra of Netzley’s and the Committee’s first assign-

ments of error and Netzley’s last assignment of error.

The judgment of the trial court with respect to Plain Dealer

and Sharkey is affirmed; the judgment of the tria. court with

respect to Netzley and the Committee is reversed and judgment is

hereby rendered in favor of Netzley and the Committee.

A44

This judgment is affirmed with respect to Plain Dealer and

Sharkey; the judgment is reversed with respect to Netzley and the

Committee and judgment is hereby rendered in favor of Netzley

and the Committee.

Costs to appellant/cross-appellee Celebrezze.

It is ordered that a special mandate be sent to said Court to

carry this judgment into execution.

A certified copy of this entry shall constitute the mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

(Judge Robert E. Cook of the

Eleventh Appellate District,

Sitting by Assignment.)

HOFSTETTER, J., CONCURS IN _

PART AND DISSENTS IN PART. _

(Judge Edwin T. Hofstetter,

Retired, of the Eleventh

Appellate District, Sitting

by Assignment.)

PRESIDING JUDGE

SAUL G. STILLMAN

(Retired, of the Eighth

Appellate District,

—EE——

A45

Sitting by Assignment.)

N.B. This entry is made pursuant to the third sentence of Rule

22(D), Ohio Rules of Appellate Procedure. This is an announce-

ment of decision (see Rule 26). Then (10) days from the date

hereof this document will be stamped to indicate journalization, at

which time it will become the judgment and order of the court and

time period for review will begin to run.

‘

—— ——————————

A46

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

James P. Celebrezze,

Plaintiff-Appellant : Case Nos. 53864 and 53865

Cross-Appellee :

v. ; CONCURRING

AND

_ Robert E. Netzley et al., —: DISSENTING

Defendant-Appellees_: OPINION

Cross-Appellants

HOFSTETTER, J., CONCURRING IN PART AND DIS-

SENTING IN PART:

I concur with the opinion and judgment as it concerns the

appeal of plaintiff-appellant James P. Celebrezze. Civ. R. 54(B),

as used by the trial court, clearly makes the order granting

summary judgment against Celebrezze final and appealable.

On the other hand, that same Civ. R. 54(B) language, in the

instant case, does not make the denial of summary judgment to

defendants Robert E. Netzley and the Miami County Republican

Committee appealable, and remand is necessary for completion of

the case in the trial court.

ae, |

A47

I do not believe that the opinion of the majority ia the instant

case comports with the Ohio law either pursuant to the Civil Rules

or decisionally. The majority has relied heavily on Humphry v.

Riverside Methodist Hospital (1986), 22 Ohio St. 3d 94, 488

N.E.2d 877, Amato v. General Motors Corp, (1981), 67 Ohio St.

2d 253, 423 N.E.2d 452, and Tilberry v. Body (1986), 24 Ohio

St. 3d 117, 493 N.E.2d 954 for support. I have no quarrel with

those decisions as applied to those cases. The facts of the instant

care, however, do not, in my opinion, warrant the determination

of finality for purposes of appeal as held by the majority.

Both Humphry and Amato, supra, as well as Tilberry stated,

in effect, that the court must weigh “the harm to the "prompt and

orderly disposition of litigation’ and the consequent waste of

judicial resources resulting from the allowance of an appeal, with

the need for immediate review because appeal after final judgment

is not practicable."

Under the facts of this case, what would be the imprac-

ticability of appeal after final judgment, and what is the “sub-

* — stantial right" affected herein that could not await the finality of

the proceedings in the trial court in the usual manner?

A48

As I indicated earlier, I have no problem with Humphry,

Amato or Tilberry supra as applied to their situations.

Humphry involved whether the disclosure of doctor-patient

confidences of non-litigant parties should be allowed. An order

as consequential, and possibly detrimental, as that certainly affects

: a substantial right and should be considered final for purposes of

appeal.

Similarly, the significance of an order, as in Amato, deter-

mining that an action be maintained as a "class action” was, in the

language of Justice Holmes, based on the facts therein, a special

proceeding resolved through a balancing test, as follows: “This

test weighs the harm to the "prompt and orderly disposition of

litigation,” and the consequent waste of judicial resources, re-

suiting from the allowance of an appeal, with the need for

immediate review because appeal after final judgment is not

practicable."

In Tilberry, the trial court Ordered a dissolution of a,partner-

ship in accordance with dissolution terms set forth in R.C.

+ nadie el en eet te ee

1775.31(A) rather than pursuant to the partnership agreement.

That order of dissolution, therefore, constituted a special pro-

ceeding not contemplated by the parties to the partnership. Such

Dill

A49

an order, if permitted to stand without the availability of appeal

because of lack of finality until the winding-up, accounting, and

distribution were completed, could have disastrous effects. The

Supreme Court held that such result affects the substantial rights

of the parties, and an appeal after normal final judgment would

not be practicable.

None of the indicia in the above cited cases, and on which

the Supreme Court bottomed its judgments of finality for purposes

of appeal, exists in the instani case. There is, in my opinion,

absolutely no justification herein for abandoning either the Civil

Rule as to finality, or finding that the denial of summary judgment

to the cross-appellants falls within the statutory definition of final

order in R.C. 2505.02. I would dismiss the cross-appeal of both

Netzley and the Miami County Republican Committee, and

remand the matter for further proceedings as to them.

With regard to the merits of the opinion of the majority, I

have some disagreement. To the extent the majority of this court

differs with the trial court in some of its factual conclusions on

some issues, the basis for summary judgment under Civ. R. 56 is

severely strained. I do concur with the majority that expressions

of opinion are afforded absolute immunity. When, however, a

eS Sn

AID DRO

ASO

fact question exists as to whether certain statements are facts or

opinion, and the answer to the question differs between the trial

court and the majority herein, it is imperative that resolution of

this difference should occur first in the trial court, subject to

appeal as with any other summary judgment.

I concur in the judgment as it concerns plaintiff-appellant

Celebrezze.

I would dismiss for lack of a final appealable order as to the

cross-appellants.

AS1

<8 Oh Pl

ts™sime The People

Judge The Court

For the Good of Ohio Elect

For Justices for Oble Supreme Court.

What others say:

“Judge Douglas has been praised for fairness

even by panics. . che has tuled against. .

“Energetic and brilliant, he has ) egal sk ils, ‘the

guts to stand up [or people. ,

Denes Dally Mews 101.84

Judge Weight is “beiltiam. .. .”* “If I’ve got a

client who's getting ripped off... - 1 want him in

- Craig’ 5 count. a

Deyton Daily News 107.84

| Re

~ Ohio's Disgrace

Whet others say about the Ohio Supreme Court:

' “The Ohio Supreme Coun now being ad-

ministered by Chief Justice Frank Celebrezze and

his cronies is the crudesi, most panisan, most vie-

dictive j in memory, and the most dangerous. .

“Only the vorers of Ohio can siop it.”

B Deysee Daily News 10-19-84

K's Go wonder that some are calling Ohio's

Justice System the “MAFIA FAMILY” Court.

Take a look. Frenk Celebrezze, Chief Justice.

Brother Jimmy Celebrezze, Associate Justice.

Cousin Tony Celebrease, Onin Auorney General,

‘and Frank Celedresse’s, ““crony’ * Angele Gogiior

Gi, the imtimidaior in charge of the Ohio

Disciplinary Council.

OXLY THE VOTERS OF CHIO CAN STOP THEM

VOTE DOUGLAS ind WRIGHT

Pod Om By ome mens ee Oe

Row mere, Ce. om tome itm

— “a

yee ye Leer ie ed

or Present

“RONALD I REAGAN -~

For Vice Presitent

GEONGE Busit

Fo Representative te Congress

181m Drawicn

THOMAS N. KINONESS

Fat State Representative

(861m Orsiricty

ROBERT E. NETZLEY

Fat County Commis sioner

(Term Commencing Janvary 2, 1985)

DON HANT

Fos County Commissioner

(Term Commencing January 3. 196%)

RICHARD J. GRAEF

Fou Prosecuting Altorney

JEFFREY M. WELBAUM

>I ><) od | 9 | ><] 9g |

For Clare of Court of Common Picas

JAN A. MOTTINGER

e For Sherntt

LUTHER B. OUNFEE id

For County Necorde:

JANET E. CAIN

For County Treasurer

ETHEL FELVER

Fort County Engmnear

DOUGLAS L. CHRISTIAN

For Comer

WALTER B. MEEKER

Fot Siste Board of Education

(81m Mretricly

SALLY AR. SOUTHARD

MON-PARTISAN JUDICIAL BALLOT

—er Se Se On Se ee ee eee ee

For Justice of ine One Supreme Coun

(Term Commencing Janvery |, 1985)

ANOREW DOUGLAS

For Justice of ihe Onto Supreme Court

(Term Commencing Janvary 2 1989)

CRAIG WRIGHT

Fort Judge of ine Court of Appeats

(294 Drstich

(Term Commencing February % 1985)

HERMAN J. WECER

For Judge of the Court of Common Mens

(Teom Commencing Feoruery 9, 1985)

JAMES J. HOOPER

>t [><] de 1K] d< | 1 os elsaisg’sclse

For Judge of ihe Court of Common Press

Modesie and Juveniic Mvisien

(le«m Commencing Feteuary 9, 1965)

HWILHARD A. GLUATEM r]

— — i ae

esponsibie

Money Management

rat Progress

fea)

DON HART 4 .

RICHARD J.

ieee CRAEF

RE-ELECT Missol Comms Commtastentn,

RE-ELECT

Chere of Courts

JAN A.

MOTTINCER

Atrami Countions con be proud. Miemi Cowaty

pA shown steady progress ond the honest respon-

ement of your tax doliers.

ote Ounties progress is highlighted by the

consiruction of a new Safety Building and Jail,

one of the finest Health Cere Centers in Ohvo (for

the elderly and indigent), completed @ new Animal

Shciter, and a new Cownty Corage. The 1973

Silver Bridge Study showed Miomi County to have

the best highway end bridge system in the Steie.

The off and beeuti{ul Court House has been

modernized ond restored end the old County

llome hes been completely resoveted for Social

Service Ojfices. ** Test's steady progress.” All this

occomplished wlibewt any in 7 ay

Afore imporieni, hundreds new ve

been created in the Miami County Indusinel Pork.

Miami County is solvent and peys its bills pro

mpuy.

Miomi County provides steady end efficient

County Government, based on responsible money

menegement,

Reture owr present County Commbslesen

ond Clerk of Courts to County office.

AS2

‘“‘AMERICA IS ON HER WAY BACK”’

— but we need

FOUR MORE YEARS

Leadership you can trust!

—~.

With President Reagan's leadership America’s

new strength and sense of purpose will carry

hope and opportunity to all Americans and io all

people thoughout the free world.

REAGAN

BUSH’84

The Choice is clear. .

We could return to the foiled polwies of Carter-Mundgle of four years ego. You remember. We hed

ercelenng taxes, runaway inflation that riddled the family budget, devastating interest rates and «@

deteriorating economy with growing unemployment and plen: closings. Remember? Certer-Mondole seid the

American People were infected with @ molaise, @ sickness spirit.

In 1980, Roneld Reagen said “no”, the American People do not suffer from a sickness of spirit. And in

" Mevember 1980, the Americen people seid * ye". . there is @ sickness in the land, but it’s not us, it's Carter.

Mondele: whose policies of the past, of hopelessness end self-blame are the source of the infection. The

Americen people etocied President Reagen.

In just four yeors, under President Reagen’s leadership, Amecicans achieved the strongest sustained

economic expension in 35 years. Inflation has been drastically reduced, interest rates ere down, and if

reelected they will be reduced even further. Your income taxes heve been cut. In foreign affairs, he has kept

the peace end stopped the spread of Russien-Cuben ereressicn and expension in Central and South Americe

end in Evrope.

W'e need Reagen’s leadership! First, we need to continue .he expansion of economic growth with more and

berter jobs ond higher productivity. Second, he has hept the peace and secks @ genuine and verifiable arms

* eanirol agreement. Finally, he has further strengthened the traditional velues of feith, Samily, work end

brethe ten gd Poylert lentocchia par baaw var can ied Reelect President Ronald Reagen. Your choice is

° a 4

aan ebnie

7’<s@, ime Tike Penn! e — _— - Pa ns

OL A SE

We Need Tom Kindness

in Congress and so doe:

President Reagan

Re-Elect

THOMAS N. KINDNESS

for

Representative to Congren

om ' Tom is a leader im fighting

: MMM the waste and the eaceswe

wages of “Tip” O'Neil. The growing natunal

dttt can only be seduced by couragcows and

responsible sepresemation in Congress Tom

Kindness works for all wf ws. *

. We Need Bob Netziey

in Columbus

~ ete Re-Elect

ye: ROBERT E. NETZLEY

for

State Represemative

Bob Netziey fights for you. He

has received the Watchdog of the

Treasury Award tepeatedl) from

pn Obio Conservative Union for fighting = ane of

your tax dollars and cacessive spending. Re-elect

Bob Netziey, Defender of the Teapeyer.

It is legal far you to take this

list of Republican candidates

to the polls for reference on

Election Day.

tesponsivie

AS3

+ JWE PLN DEALER FRIDAY, NOVEMBER 16, 1964

GOP boss firm on court-Mafia tie

: Poeun dator in charge of the Obie Disciple rejected Bazler's demand for as apel-

By MARY ANNE SHARKEY ‘crony” Angele Cagliarde, the intimi- Netley, R48, of Laura. yesterday type of advertising we bad Le cosiend

mo.~

ety. He said he docs aot Lnow anyooe @

COLUMSUS — State Rep Robert 2/7 Counsel.” . e

“Fm not apologizing to that coart 1 tbe Mafia.

E Nettles. chairman ef the Miami _ Democrats James Celebreme and

Cownty Resublican Party. said yesier- Cuyahoga Covaty Commoe Pleas tell you.” he sand. “That's the war we Rarler's defense of the Celebreme

day be us rot backiog doen irom his Judge Jeda E Cornipac lost to Repud ire! adowt the court aod the abole famuly pleased tbe clue! justice.

Orpaerratvon’s election Srochure lecsns Craig Wright, a Frapklio system™ “That was very gentlemanly of

Stich sand Orve's justice system is run Covaty Common Pleas judge. 204 acied whe the “some” le the bre hime messed “Thags be this soni

by Whe “Matsa lamiiy.” Appeals Judge Andy Devgias of cbure referred to, Netley said “A let type of Useg the bar assaciatics ought

eas Seem : Tolede, respecuvely Nev. 6. of people in Miami County feel that ip be interested in”

wre. mailed te Miami In a letter, Frank E Baer, presi- way.”

County RepubLcans belere the Nov. 6 — gent of the Odie Slate Bar Association c 1 Ant Frank Celebrerze and Bazier are te

elecuse, sax and 2 Miami Covety Republicae, .. payee dasmayed <P — — the —

“It's no wonder that some are call. called on Netriey and the Miami eure -

ing One's Jacuice Sestem the "MAFIA County Repubiican Party te apologise Jer lleelw etic bat atseciahen. Celebrere bad pre

FAMILY Cee Tate a look. Frant to the Celedrezrcs and Gagliarde. ; Wrously refused requests we Meet Md

Celeorerre. Cheel Justice. Brother “Frankty, } am appatled be that Chie! Justice Frank D. Celebrerre #8 of licials.

Jommy Ceiedrene Associate Justice. pararraph and deplore the poor judg. 8216. “I thougdt Wat type of same = Dennis Whalen, spolesmas for the

Cousin Tors Cetebreaze. Oave Attor- MEM io its tetacecodle use,” Barer calling had gone owt with Ue advent state har. called the meeung “a

wy Ceneral. and Frank Celedbrecre’s wrote. ; : of the 20 ae be -+» Udal @as De _ Uve development” —

A54

He fe liail

oi Hal i

ul EE byitier

io i Ha

: i fet

i iT Wie 4

in i 5

°)

, eh 1, Hie

if fate ip %

af Pe

He AEE oy

il i Fie 1B in

ati aR

4 Pear it .?

carat eet Hit

1 iu 39 ety =

i pitti Hs Ep ep

fy! ui Hilt

| fin ih ~

at icirt ie >

Te 230i: dee § {

ASS

JUDGMENT AND OPINION

OF THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

(filed April 28, 1987)

IN THE COURT OF COMMON PLEAS

COUNTY OF CUYAHOGA

James P. Celebrezze, Case Number 86740

Plaintiff Judge Donald C. Nugent

-VS-

PINION

Robert E. Netzley, et al.

mee ee ee ae ee ee Nee ee ee”

Defendants

The Defendants Robert E. Netzley, Miami County Repub-

lican Committee, Plain Dealer Publishing Co. and Mary Anne

Sharkey, have moved this Court pursuant to Rule 56 of the Ohio

Rules of Civil Procedure for judgment in their favor on the ground

that there is no genuine issue as to any material fact and that they

are entitled to judgment as a matter of law.

In support of this Motion, Defendants Robert E. Netzley and

the Miami County Republican Committee rely upon the deposition

of Robert E. Netzley given on September 16, 1985, a copy of the

Brochure, a transcript of Plaintiff James P. Celebrezze’s tes- —

timony, certain political definitions and numerous news articles.

AS6

In support of their Motion, Defendants Plain Dealer Publishing

Co. and Mary Anne Sharkey rely upon the affidavits of Mary

Anne Sharkey and Joseph D. Rice, as well as certain excerpts

from the deposition of Defendant Netzley and eleven additional

attached exhibits with Memorandum.

In response to all such Motions, Plaintiff, in addition to a

Memorandum directed to each such Motion, also submitted in

support of his response the depositions of Mary Anne Sharkey;

Joseph D. Rice; Douglas F. Kramer; and Robert E. Netzley. The

Brochure and certain newspaper articles were also submitted.

Plaintiff was an elected Associate Justice on the Ohio

Supreme Court beginning January 11, 1983. Plaintiff was the

Democratic nominee for that seat on the Supreme Court in the

November, 1984 general election. His opponent was the

Republican nominee. This race, as well as the other contested

Supreme Court election between the Democratic and Republican

nominees, generated a great amount of publicity.

Defendant Netzley, a Republican, is a member of the Ohio

House of Representatives and has been for over 25 years. He is

also Chairman of Defendant Executive Committee of the Miami

County Republican Party, aka Miami County Republican Com-

roe

AS7

mittee. As both Chairman of the Miami County Republican

Committee and as State Representative for over 25 years; Defen-

dant Netzley has become a well-known and influential individual

in the political arena in the State of Ohio.

During the campaign and prior to the November, 1984

election, Defendant Netzley developed, designed and made the

Brochure that contained the offending material on behalf of the

Miami County Republican Committee. This Brochure was pub-

lished and distributed through the mail to registered voters in

Miami County, Ohio prior to the election. The offending portion

of the Brochure states:

“It’s no wonder that some are calling Ohio’s

Justice System the "MAFIA FAMILY’ Court. Take a

look. Frank Celebrezze, Chief Justice. Brother Jimmy

Celebrezze, Ohio Attorney General, and Frank

Celebrezze’s *crony’ Angelo Gagliardi, the intimidator

in charge of the Ohio Disciplinary Council."

ONLY THE VOTERS CAN STOP THEM

VOTE DOUGLAS and WRIGHT

Immediately upon the publication of the Brochure, criticism

and controversy erupted throughout the Democratic Party, the

Celebrezze family and Ohio State Bar Association.

AS8

Before the election, nothing was published in The Plain

Dealer concerning the Brochure. However, Democratic State

Party Chairman James Ruvolo told reporter/editor Joseph Rice

that he found the Brochure offensive. After the election in which

Plaintiff was defeated, Ruvolo again mentioned the Brochure to

Rice and told him he was considering filing a complaint with the

Ohio Elections Commission. Further, Mr. Ruvolo publicly

mentioned the contents of the Brochure on a Columbus, Ohio

television program on November 11, 1984, the election.

On November 15, 1984, Defendant Sharkey conducted an

interview with Ohio Attorney General, Anthony J. Celebrezze,

who gave Sharkey a copy of the Brochure and told her that he felt

as an attorney, the Brochure was libelous.

Defendant Netzley claims the Brochure was only a condensed

version of several statements and ideas that had previously been

published in the editorial and feature pages of other newspapers

and magazines.

Before The Plain Dealer decided to publish an article on the

Brochure and the resulting controversy, Defendant Sharkey had

talked to Joseph Rice on at least two occasions whereupon Rice

had mentioned Ruvoio’s comments. She had knowledge of

AS9

Ruvolo’s TV appearance mentioning the Brochure; she had con-

tacted Dennis Whalen, spokesman for the Ohio State Bar

Association, to learn their position on the subject; she had

reviewed a copy of the letter sent by the President of the Ohio

State Bar Association and a member of the Miami County

Republican Committee, Frank Bazler, to Defendant Netzley

criticizing the Brochure and demanding an apology from Neizley;

she personally contacted Defendant Netzley for his comments both

about the Brochure and Bazler’s demand for an apology; and, she

was aware of the comments made to Joseph Rice by then Chief

Justice Frank Celebrezze concerning the controversy, which

comments were included in the article when Joseph Rice edited it

for publication. The Plaintiff's Complaint, Count III, “False

Light", having been dismissed by the Court on June 30, 1986,

alleges that the publication of these various statements by the

Defendants constituted libel, slander, and intentional infliction of

emotional distress. Plaintiff's claim of invasion of privacy was

previously dismissed at the request of the Plaintiff.

In Norris v, Ohio Std. Oil Co, (1982), 70 Ohio St. 2d 1, the

Ohio Supreme Court held,

A60

Summary judgment is a procedural device to ter-

minate litigation and to avoid a formal trial where there

is nothing to try. It must be awarded with caution,

resolving doubts and construing evidence against the

moving party, and granted only when it appears from

ES SS ee ne lusi ing t

motion.

Petroff_ v. Commercial Motor Freight, Inc.

(1960), 82 Ohio Law Abs. 433; Horvath v. Fisher

Foods, Inc, (1962), 93 Ohio Law Abs. 182; Ohio App.

2d 41; Morris v. First Natl. Bank & Trust Co, (1970),

21 Ohio St. 2d 25. A successful motion for summary

judgment rests on the two- part foundation that there is

no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. Kuwait

y. John David Management Co, (1974), 42 Ohio App.

2d 63; Vetovitz Bros., Inc. v. Kenny Consir. Co,

(1978), 60 Ohio App. 2d 331, 332. (Emphasis added.)

See also, Viock v. Stowe-Woodward Co, (1983), 13 Ohio App.

3d 7. Therefore, before a reviewing court will sustain summary

judgment, it must follow the standard set forth in Civ. R. 56(C),

which specifically provides that before summary judgment may be

granted, it must be determined that,

(1) No genuine issue as to any material fact remains to

be litigated: (2) the moving party is entitled to judgment

as a matter of law; and (3) it appears from the evidence

that reasonable minds can come to but one conclusion,

and viewing such evidence most strongly in favor of the

party against whom the motion for summary judgment

is made, that conclusion is adverse to that party.

Temple v, Wean United, Inc. (1977), 50 Ohio St. 2d 317.

A6é1

When fundamental First Amendment rights are at issue, the

Ohio Court recognized the necessity of disposing of cases by way

of summary judgment.

The Ohio Supreme Court stated in Dupler vy. Mansfield

Journal Co,, 64 Ohio St. 2d 116 (1980), cert. denied, 452 U.S.

962 (1981):

S iall i

in_the First Amendment area . . . “Unless persons,

including newspapers, desiring to exercise their First

Amendment rights are assured freedom from the harass-

ment of lawsuits, they will tend to become self-censors.

And to this extent debate on public issues and the

conduct of public officials will become less uninhibited,

less robust, and less wide-open, for self-censorship

affecting the whole public is "hardly less virulent for

being privately administered.’"

The United States Supreme Court as well states that in defamation

cases, there are more stringent standards for Plaintiff to defeat a

motion for summary judgment. See Anderson v, Liberty Lobby,

Inc., 106 S. Ct. 2505, 54 U.S.L.W. 4755 (1986).

In Anderson, the Court reiterated that a defamation plaintiff

must prove with “convincing clarity” that a genuine issue of

material fact exists with respect to actual malice. The Court

further held that the plaintiff must set forth “affirmative,” “pro-

bative," “concrete evidence” to meet his burden of proof to defeat

A62

summary judgment.

The Anderson Court held:

Respondents argue, however, that

whatever may be true of the applicability of

the “clear and convincing" standard at the

summary judgment or directed verdict stage,

the defendant should seldom if ever be

granted summary judgment where his state

of mind is at issue and the jury might dis-

believe him or his witnesses as to this issue.

They rely on Poller _v, Columbia Broad-

casting Co., 368 U.S. 464 (1962), for this

proposition. We do not understand Poller,

however, to hold that a plaintiff may defeat

a defendant’s properly supported motion for

summary judgment in a conspiracy or libel

case, for example, without offering any

concrete evidence from which a reasonable

juror could return a verdict in his favor and

by merely asserting that the jury might, and

legally could, disbelieve the defendant’s

denial of a conspiracy or of legal malice.

The movant has the burden of showing that

there is no genuine issue of fact, but the

plaintiff is not thereby relieved of his own

burden of producing in turn evidence that

would support a jury verdict. Rule 56(e)

itself provides that a party opposing a

properly supported motion for summary

judgment may not rest upon mere allegation

or denials of his pleading, but must set forth

specific facts showing that there is a genuine

issue for trial. Based on that Rule, Cities

Service, 391 U.S., at 290, held that the

plaintiff could not defeat the properly sup-

ported summary judgment motion of a

defendant charged with a conspiracy without

A63

offering “any significant probative evidence

tending to support the complaint." As we

have recently said, “discredited testimony is

not (normally) considered a sufficient basis

for drawing a contrary conclusion." Bose

Inc,, 466 U.S. 485, 512 (1984). Instead, the

plaintiff must present affirmative evidence in

order to defeat a properly supported motion

for summary judgment. This is true even

where the evidence is likely to be within the

possession of the defendant, as long as the

plaintiff had had a full opportunity to conduct

discovery.

54 U.S.L.W. at 4759-60.

The first issue to be resolved is whether the Plaintiff is a

public figure as that term is defined in the prosecution of a libel

suit. Plaintiff is a former Common Pleas Judge, Court of Appeals

Judge, Ohio Supreme Court Associate Justice, and currently is law

director for the City of Broadview Heights, and he has been a

candidate for other public office.

The Supreme Court has held that certain individuals must

meet a heightened burden (aciual malice) befc > they can maintain

a successful libel suit. The court has held that the First Amend-

ment of the Federal Constitution requires two categories of

individuals to meet this threshold, public officials and public

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

A64

The Gertz court gave the following definition of a public

figure:

“The New York Times standard

defines the level of constitutional protection

appropriate to the context of defamation of a

public person. Those, who by reason of the

notoriety of their achievements or the vigor

and success with which they seek the public’s

attention, are properly classed as public

figures... ."

The court explained the rationale underlying this heightened

standard:

With that caveat we have no difficulty

in distinguishing among defamation plaintiffs.

The first remedy of any victim of defamation

is self-help using available opportunities to

contradict the lie or correct the error and

thereby to minimize its adverse impact on

reputation. Public officials and public figures

usually enjoy significantly greater access to

the channels of effective communication and

hence have a more realistic opportunity to

counteract false statements than private

individuals normally enjoy. Private in-

dividuals are therefore more vulnerable to

injury, and the state interest in protecting

them is correspondingly greater.

More important than the likelihood

that private individuals will lack effective

opportunities for rebuttal, there is a com-

pelling normative consideration underlying

the distinction between public and private

defamation plaintiffs.

A65

Those classed as public figures stand

in a similar position. Hypothetically, it may

be possible for someone to become a public

figure through no purposeful action of his

own, but the instances of truly involuntary

public figures must be exceedingly rare. For

the most part, those who attain this status

have assumed roles of especial prominence in

the affairs of society. Some occupy positions

of such persuasive power and influence that

they are deemed public figures for all pur-

poses. More commonly, those classed as

public figures have thrust themselves to the

forefront of particular public controversies in

order to influence the resolution of the issues

involved. In either event, they invite atten-

tion and comment.

Even if the foregoing generalities do

not obtain in every instance, the communi-

cations media are entitled to act on the as-

sumption that public officials and public

figures have voluntarily exposed themselves

to increased risk of injury from defamatory

falsehood concerning them.

Id. at 344, 345.

The Plaintiff, James P. Celebrezze, is a public figure.

Having determined that Plaintiff is a public figure and before

addressing the issue of “actual malice” and “neutral reportage,"

this Court must address the issue whether the Brochure was an

expression of opinion or fact. Expressions of opinion in contrast

A66

to statements of fact differ dramatically in their protection under

the Constitution.

The Ohio Supreme Court has confirmed that opinions are not

actionable when they form th= basis for a defamation action. See

Scott v, News Herald, 25 Ohio St. 3d 243 (1986). To distinguish

expressions of opinion from statements of fact, the Ohio Supreme

Court in Scott adopted the four-pronged “totality of the cir-

cumstances" test which had originally been set forth in Ollman v.

Evans, 750 F. 2d 970 (D.C. Cir. 1984), cert, denied, 105 S. Ct.

2662 (1985).

The four-pronged test must be used to determine whether a

statement is an expression of opinion or a statement of fact along

with all other facts and circumstances that exist to determine the

“totality of the circumstances."

Consideration of the totality of the

circumstances to ascertain whether a state-

ment is opinion or fact involves at least four

factors. The first is the specific language

used, second whether the statement is veri-

fiable, third is the general context of the

statement, and fourth is the broader context

in which the statement appeared. See gen-

erally, Ollman _v, Evans, supra, at 979;

Janklow v, Newsweek, Inc, (8th Cir. 1985),

759 F. 2d 644, 649.

In the first prong, the Court must look to the specific language:

A67

"It’s no wonder that some are calling

Ohio’s Justice System the "MAFIA FAMILY’

Court."

The common meaning of Mafia Family is to refer to an organized

criminal syndicate. The clear impact of this statement is to

characterize Plaintiff as a member of an organization with a

profound reputation of the most violent and illegal conduct.

There is not an individual reading such a statement in connection

with Plaintiff and the others with Italian names which would

interpret it as anything but a statement of fact that Plaintiff and

the others mentioned were members of or had very close ties to

organized crime. This Court cannot say, as a matter of law, that

such statement had multiple, ambiguous, indefinite, imprecise, and

loosely definable meanings. Thus, the first prong of the Scott test

has been established by clear and convincing evidence.

The second prong is the verifiability of the statement.

Clearly from all the evidence, this statement is absolutely not

verifiable. Thus, the prong of the Scott test has been established

by clear and convincing evidence.

The third prong is the general context in which this statement

was made. The column in which the statement was made con-

A68

tained four paragraphs, of which the first three contained direct

quotes from the Dayton Daily News and the last paragraph

contained the complained-of statement. In this context it not only

appears to be a statement of fact, but also is given more credi-

bility by association with the Dayton Daily News. Also, the

inclusion of other prominent public officials in the Ohio justice

system with Italian last names militates in favor of a statement of

fact rather than an expression of Thus, the third prong of the Scott

test has been established by clear and convincing evidence.

The fourth prong is the broader context in which the state-

ment appeared. There is no question that the Brochure was

developed and distributed as a political campaign tool and in

reference to this case, to defeat Plaintiff. Politicians use rhetoric

during campaigns, and the social implications of a tee exchange

of ideas during political races are to be encouraged. However,

when an official Brochure of the Miami County Republican Party

is issued and Defendant Netzley is the prominent individual he is

within the Republican Party and Chairman of the Executive

Committee of the Miami County Republican Committee, the

Statement certainly under all of these circumstances can be con-

sidered one of fact rather than an expression of opinion. Thus,

A69

the fourth prong of the Scott test has been established by clear and

convincing evidence.

Having determined that such statement was a statement of

fact, it next be determined whether the statement was in fact

defamatory or whether the statement is capable of or susceptible

to an innocent "meaning or construction.”

The second issue in this context to then be decided is

whether the alleged defamatory statements are false, since truth

is a complete defense to such action, O.R.C. 2739.02. The real

question is whether the statement is substantially true rather than

literally true in every respect. See, Driscoll v. Block, 3 Ohio

App. 2d 351, 368-70 (Lucas County 1965); Horvath v. The

Telegraph, 8 Media L. Rep. (BNA) 1657, 1661 (Ohio Lake

County App. 1982).

In assessing the alleged defamation, it must be read in

context. As to Defendants Netzley and the Miami County Repub-

lican Committee, the entire Brochure must be reviewed. As to

Defendants Sharkey and Plain Dealer Publishing Co., the headline

and the article must be read together. Painter v. E.W. Scripps

Co., 104 Ohio App. 237 (Franklin County 1957)(syllabus 1).

A70

The evidence before this Court conclusively demonstrates

that Defendant Netzley knew that Plaintiff was not a member of

the Mafia nor did he have any evidence whatsoever to even

suggest any Mafia connection when he wrote and published the

statement. Further, Defendants Sharkey and the Plain Dealer

Publishing Co. knew not only that Defendants Netzley and the

Miami County Republican Party had no evidence to substantiate

their defamatory statement, but also that no such evidence existed

to the knowledge of either Defendant Sharkey or Defendant Plain

Dealer Publishing Co.

Defendants contend the "Innocent Construction Rule,” e.g.,

that the defamatory statement is subject to an innocent, non-

defamatory meaning as well as a defamatory meaning, thus

making the statement non-actionable. See Yeager v. Local Union

20, 6 Ohio St. 3d 369 (1983). The Court stated, “[I]f defamatory

words are susceptible to two meanings, one defamatory and one

innocent, the defamatory meaning should be rejected and the

innocent meaning adopted." Id. at 372.

The inclusion of the Ohio Attorney General in this so-called

"Mafia Family Court" along with the Disciplinary Counsel, all

with names of Italian heritage, make this statement impossible to

A71

say that it is susceptible to two meanings, one innocent and one

defamatory as a matter of law. This statement was clearly cal-

culated to prey upon the most vile form of racial prejudice in

implying that the elected Italian public officials named were

members of the "Mafia," a well-known criminal organization

which has historicai roots within the Italian-American community.

It is this characterization of criminality that Italian Americans have

fought for years to overcome. This statement is not a term used

in the political sense such as "Irish Mafia" and “Georgia Mafia"

or "Magnolia Mafia" as were sometime terms used to imply

political “cronyism" in the Kennedy and Carter Administrations.

This Court cannot say under the Yeager requirements that the

defamatory words ad as a matter of law, susceptible to two

meanings, one defamatory and one innocent. This statement in

this case, as a matter of law, can only be construed as defa-

matory.

In order for a public official plaintiff like James Celebrezze

to recover in a libe’ suit, he must prove that the defamatory

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.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-

A72

80 (1964). The “actual malice” standard under the New York

Times rule requires proof that the defendant published a statement

with a "high degree of awareness of its probable falsity" and that

the defendant "in fact entertained serious doubt as to the truth of

his publication." St. Amant v. Thompson, 390 U.S. 727, 731

(1968); Garrison v. Louisiana, 379 U.S. 64, 74 (1964).

The court in Hunt v. Liberty Lobby, 720 F. 2d 631 (11th

Cir. 1983), acknowledged that the burden on a public official

plaintiff is indeed a heavy one, and that, "absent an admission by

the defendant that he knew his material was false or that he

doubted its truth, a public figure must rely upon circumstantial

evidence to prove his case." Id. at 643, citing Herbert v. Lando,

441 U.S. 153, 99 S. Ct. 1635 (1979).

As one distinguished libel author acknowledged,

Although the New York Times (actual

malice) standard is difficult for a plaintiff to

meet, it is not insurmountable.

No single factor is guaranteed to

satisfy the standard in all cases, but in

attempting to meet the test the plaintiff may

rely upon evidence of negligence, of motive

and of intent . . . for the purpose of esta-

blishing, by cumulation and by appropriate

inferences, the requisite degree of culpability.

Mere statements by the defendant of his belief

in the truth of a publication will carry the

A73

day only if they are not overridden by

evidence establishing knowing or ’reckless’

falsity.

R. Sacks, Libel, Slander & Related Problems, 213-214 (1980).

Thus, although recklessness in a defamation case requires a

showing of subjective doubt, it “is ordinarily inferred from

objective facts." Washington Post Co, v, Keogh, 365 F. 2d 965,

968 (D.C. Cir. 1966), cert. denied, 385 U.S. 1011 (1967);

Goldwater _v, Ginzburg, 414 F. 2d 324 (2d Cir. 1969). The

reasoning of the First Circuit in Bose Corp. v. Consumers Union

of United States Inc., 692 F. 2d 189, 196 (ist Cir. 1982), aff'd

U.S. ___s, 80 L. Ed. 2d 502 (1984) is instructive in this

regard:

The subjective determination of

whether [a defendant] in fact entertains

serious doubts as to the truth of the statement

may be proved by inference, as it would be

rare for a defendant to admit such doubts . .

. A court typically will infer actual malice

from objective facts - - - These facts should

provide evidence of negligence, motive and

intent such that an accumulation of the evi-

dence and the appropriate inference supports

the existence of actual malice. (Emphasis

added.)

A74

The Supreme Court in St. Amant, supra, at 732, has set

forth certain circumstances, evidence of which will support a

finding of actual malice:

The defendant in a defamation action

brought by a public official cannot, however,

automatically ensure a favorable verdict by

testifying that he published with a belief that

the statements were true. The finder of fact

must determine whether the publication was

indeed made in good faith. Professions of

good faith will be unlikely to prove per-

suasive, for example, where a story is fabri-

cated by the defendant, is the product of his

imagination, or is based wholly on a” un-

verifiable anonymous telephone call. Nor

will they be likely to prevail when the pub-

lisher’s i i i -

able that only a.reckless man would have put

them in circulation. Likewise, recklessness

may be found where there are obvious rea-

(Emphasis

added.)

Furthermore, when a subject is not so newsworthy as to be

considered “hot news,” “actual malice may be inferred when the

investigation for a story . . . was grossly inadequate in the cir-

cumstances." Hunt, supra, citing with approval Vandenburg v.

Newsweek, Inc., 441 F. 2d 378, 380 (Sth Cir. 1971).

As previously stated, a public official may not recover in a

libel action unless he proves with “convincing clarity" that the

A75

article (as to Defendants Sharkey and Plain Dealer Publishing) or

the Brochure (as to Defendants Netzley and Miami County Repub-

lican Committee) was published with actual malice, Le., “with

knowledge that it was false or with reckless disregard of whether

it was false or not." New York Times, supra, 258-286. This

constitutional privilege was premised on a “profound national

commitment to the principle that debate on public issues should be

uninhibited, robust and wide-open . . . “ Id. at 270.

To prove that there was reckless conduct, there must be

sufficient evidence to permit the conclusion that the Defendant “in

fact entertained serious doubts as to the truth of his publication."

St. Amant, supra, at 731. And as has been previously stated as

well, Plaintiff cannot defeat a motion for summary judgment

without “concrete evidence” that could cause a jury to find actual

malice with convincing clarity. See Anderson, supra.

A review of all the evidence before this Court, including

Defendant Netzley’s deposition, clearly demonstrates that there is

a genuine issue to permit a jury to determine the existence of

actual malice by Defendants Netzley and Miami County Repub-

lican Committee. The remaining Defendants will be addressed

later on this issue.

A76

Defendants Sharkey and Plain Dealer Publishing claim

notwithstanding the defamatory nature of the Brochure, its republi-

cation is protected by the constitutional doctrine of neutral

reportage and is thus not actionable.

This doctrine of “Neutral Reportage” first came into promi-

nence in Edwards v. National Audobon Society, Inc,, 556 F. 2d

113 (2d Cir.), cert. denied, 434 U.S. 1002 (1977). This decision

discusses the need to permit a neutral report of an event of public

interest. However, this does not mean to imply that a publication

may report anything said by anyone under the guise of being

constitutionally privileged by the neutral reportage doctrine. The

court in Edwards set certain guidelines to be followed. In

Edwards, the National Audubon Society made serious charges

against a public figure that were reported by the media. Due to

the prestige and standing of the National Audubon Society and the

serious nature of the charges, the court found the reporting of

such charges to be constitutionally protected. The court also

made clear that this must be decided on a case-by-case basis.

Ohio has recognized and adopted the doctrine of “Neutral

Reportage." See Horvath, supra; House of Wheat v. Wright, No.

8614, Slip Op. (Ohio Montgomery County App., Oct. 10, 1985);

A77

LV. Peters & Co, v, Knight Ridder Co,, 10 Media L. Rep.

(BNA) 1576, 1580-81 (Ohio Summit County App. 1984); and

Grafton v, American Broadcasting Co,, 70 Ohio App. 2d 205,

215.

The Plain Dealer and Sharkey had absolutely no evidence

whatsoever of any alleged connection of the Plaintiff and the

Mafia. They thoroughly investigated the Brochure and the per-

sons responsible for it and accurately reported its contents with

the resuiting controversy without concurring in the charges made

or espousing them to others. The Plain Dealer and Sharkey were

not only reporting the publication of the Brochure, but also they

were reporting or republishing the comments and complaints

concerning the Brochure made by James Ruvulo and Ohio Attor-

ney General Anthony J. Celebrezze. Clearly, the charges con-

tained in the Brochure were unjust and without foundation, but

when made by Defendant Netzley and the Miami County Repub-

lican Committee under these deem. to prohibit such

republication would violate the public interest and the public right

to such information.

Accordingly, and for the foregoing reasons, the Motion for

Summary Judgment filed on behalf of the Defendants Robert E.

A78

Netzley and the Miami County Republican Committee is over-

ruled. The Motion for Summary Judgment filed on behalf of the

Defendants Plain Dealer Publishing Company and Mary Anne

Sharkey is granted. Pursuant to ORCP 54(B), this Court speci-

fically intends to make such findings as to each Defendant a fina!

judgment and makes the express determination that there is no just

reason for delay.

/s/ Donald C, Nugent_

DONALD C. NUGENT, JUDGE

DATED); /s/ April 28, 1987

A79

SERVICE

A copy of the foregoing Judgment and Opinion was sent by

ordinary U.S. Mail this /s/ 28th day of /s/ April, 1987, to: |

Don C. Iler, Esq.

Iler and Ellerin

1640 Standard Building

Cleveland, Ohio 44113

Robert J. Huffman, Esq.

103 North Miami Street

West Milton, Ohio 45383

Belinda J. Scrimenti, Esq.

Baker & Hostetler

3200 National City Center

Cleveland, Ohio 44114

Louis Paisley, Esq.

2500 Terminal Tower

Cleveland, Ohio 44113

Donald H. Pace, Esq.

3200 National City Center

Cleveland, Ohio 44114

/s/ ] n

DONALD C. NUGENT, JUDGE

A80

U.S. Const. amend. I:

Articles in addition to, and amendment of, the

Constitution of the United States of America, proposed

by Congress, and ratified by the legislatures of the

several states pursuant to the Fifth Article of the original

Constitution.

AMENDMENT I

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people to peaceably to assemble, and to

petition the government for a redress of grievances.

AMENDMENT XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jursidiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, whithout due

processof law; nor deny to any person within its juris-

diction the equal protection of the laws.

Section 2. Representatives shall be apportioned among

the several States according to their respective numbers,

counting the wholenumber of persons in each State,

excluding Indians not taxed. But when the right to vote

at any election for the choice of electors for President

and Vice President of the United States, Representatives

in Congress, the Executive and Judicial officers of a

State, or the members of the Legislature thereof, is

denied to any of the male inhabitants of such Staate,

being twenty-one years of age, and citizens of the

United States, or in any way abridged, except for

participation in rebellion, or other crime, the basis of

representation therein shall be reduced in the proportion

A8l

which the number of such male citizens shall bear to the

whole number of male citizens twenty-one years of age

in such State.

Section 3. No person shall be a Senator of Represen-

tative in Congress, or elector of President and Vice

President, or hold any office, civil or military, under the

United States, or under any State, who, having pre-

viously taken an oath, as a member of Congress, or as

an officer of the United States, or as a member of any

State legislature, or as an executive or judicial officer of

any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the enemies

thereof. But Congress may by a vote of two-thirds of

each House, remove such disability.

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for

payment of pensions and bounties for services in sup-

pressing insurrection or rebellion, shall not be ques-

tioned. But neither the United States nor any State shall

assume or pay any debt or obligation incurred in aid of

insurrection or rebellion against the United States, or

any claim for the loss or emancipation of any slave; but

all such debts, obligations and claims shall be held

illegal and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

$2505.02 Final order.

An order that affects a substantial right in an action

which in effect determines the action and prevents a

judgment, an order that affects a substantial right made

in a special proceeding or upon a summary application

in an action after judgment, or an order that vacates or

sets aside a judgment or grants a new trial is a final

A82

order that may be reviewed, affirmed, modified, or re-

versed, with or without retrial.

When a court issues an order that vacates or sets aside

a judgment or grants a new trial, the court, upon the

request of either party, shall state in the order the

grounds upon which the new trial is granted or the

judgment vacated or set aside.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.