# Petition for Writ of Certiorari — Netzley v. Celebrezze > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2845%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 967 ## Text 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 iv 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 - 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 2 : t 3 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. B. 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 D. 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 A. 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. B. 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. ea 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 I >t [> 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. Ma 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- a 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 OO 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2845%3A1. Public record. Not legal advice.