Petition for Writ of Certiorari — Coody v. Thomson Newspapers, Inc.

Supreme Court, U.S.

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Y gee 86 A SEP 1 - 1995

No. OEFICE OF THE CLERK

In The

r Supreme Court of the United States

October Term, 1995

*

DAN COODY,

Petitioner,

THOMSON NEWSPAPER PUBLISHING, INC., et al.,

Respondents.

Petition For Writ Of Certiorari

To The Supreme Court Of Arkansas

+

PETITION FOR WRIT OF CERTIORARI

oom

J™ Rose III*

JOHN VANWINKLE

Rose & VANWINKLE

P.O. Box 1504

Fayetteville, Arkansas 72702

(501) 443-5700

* Counsel of Record

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether an appellate court in a defamation case

may undertake independent review of subsidiary or his-

torical facts found at trial and of factual determinations

based on credibility.

2. Whether a public official or public figure may

prove actual malice largely or exclusively by circumstan-

tial evidence that the defendant “entertained serious

doubts” as to the truth of his publication.

3. Whether the actual malice standard should be

reconsidered in light of the virtually insurmountable bur-

den that it imposes on public plaintiffs in defamation

cases.

LIST OF PARTIES

Pursuant to Supreme Court Rule 14.1(b), the parties

to this proceeding are:

Petitioner:

Dan Coody, a citizen of the State of Arkansas.

Respondents:

Thomson Newspaper Publishing, Inc., a corporation

organized under the laws of Delaware, d/b/a Northwest

Arkansas Times;! S.D. “Dave” Stokes, a citizen of the State

of Arkansas and former publisher of the Northwest

Arkansas Times.

1 The proper name of separate Defendant “Thomson News-

paper Publishing, Inc.” is actually Thomson Newspaper, Inc.,

however the style was maintained throughout the case as Thom-

son Newspaper Publishing, Inc.

ili

TABLE OF CONTENTS

Page

SEPP EMAMPD. CEEWE MED cass rcsesicccveccetcceces i

SU SUE exdadvysaadovssecWctspecdensieeds ii

RA SAUER EUGENES 5 occ cc ccccccsvccccinvenes iv

RIED ie Si 4 o's a b'¥ 8 wires Honk’ Vide cede edess 1

NE sc SEA IG FV RNID pase padctvanesacecss 2

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

RMR EEE GP AERIS GAO occ ccc ecscencccesicess 3

REASONS FOR GRANTING THE PETITION....... 7

A. THE LOWER COURTS ARE DIVIDED OVER

THE PROPER SCOPE OF INDEPENDENT

APPELLATE REVIEW IN LIBEL CASES...... 8

B. THE DECISION BELOW CONFLICTS WITH

THOSE OF THIS COURT AND OTHER

COURTS REGARDING PROOF OF ACTUAL

Cis er sau th vases ct sean a taankpe=p>s¢ 14

EMME boGids swaeWabeerescascsuvacgctvecess 20

APPENDIX

A. OPINION BELOW. ...... ccc cece ce cceeees App. 1

B. DENIAL OF PETITION FOR REHEARING. .App. 13

iv

TABLE OF AUTHORITIES

Page

CasES

Ball v. E.W. Scripps Co., 801 S.W.2d 684 (Ky. 1990),

cert. denied, 499 U.S. 976 (1991) .............eeeees 11

Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) ..... 8

Bressler v. Fortune Magazine, 971 F.2d 1226 (6th Cir.

1992), cert. denied, 113 S.Ct. 1416 (1993)........... 13

Brewer v. Rogers, 439 S.E.2d 77 (Ga. App. 1993),

cert. denied, 114 S.Ct. 2712 (1994). .......c.0cccees 16

Connaughton v. Harte-Hanks Communications, Inc.,

842 F.2d 825 (6th Cir. 1988), aff'd, 419 U.S. 657

CEDGE sins 6k vik ine bee ee sky elena es baa 19

Currier v. Western Newspapers, Inc., 855 P.2d 1351

CAstn. BO0GP wis ivind Sc cod dn ch eee ea pee Bae ae ad on 17

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) .... 19

Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969),

cert. denied, 396 U.S. 1049 (1970) ............... 18, 19

Harte-Hanks Communications, Inc. v. Connaughton,

GR TE Ss GE. CO ik ba bas 0 0b 0 oS Tes RSE passim

Herron v. KING Broadcasting Co., 746 P.2d 295

(Wash. 1987), on rehearing, 776 P.2d 98 (Wash.

WIR oan we keS sek Se ecne seeks ead ar aemet ewes 18

Hinerman v. Daily Gazette, 423 S.E.2d 560 (W. Va.

1992), cert. denied, 113 S.Ct. 1384 (1993)........ 44.17

Kuhn v. Tribune-Republican Pub. Co., 637 P.2d 315

CUMIN: DEED oo ccs 05 < ick ats cbc oil eck ae beeen as 18

Lyons v. Rhode Island Public Employees Council, 559

A.2d 130 (R.I.), cert. denied, 493 U.S. 892 (1989) .... 10

Vv

TABLE OF AUTHORITIES —- Continued

Page

Masson v. The New Yorker Magazine, Inc., 960 F.2d

SO Ce Gn REE a aparece cee ced chad ie eceapeces 16

McCoy v. Hearst Corp., 227 Cal. App. 3d 1657, 278

Cal. Rptr. 596 (1991), cert. denied, 502 U.S. 1060

8 | PPPOE EET TERETE ree er Pee ope ere ree re pee 10

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ...5, 9

Newton v. National Broadcasting Co., 930 F.2d 662

(9th Cir. 1990), cert. denied, 502 U.S. 866 (1991)

GEAR ESS eeCAUSESEE ES CEE RCTP ER ER AVR ae; 3,42, te

Seropian v. Forman, 652 So.2d 490 (Fla. App. 1995).... 11

Starkins v. Bateman, 724 P.2d 1206 (Ariz. App.

ROU ida o 68k CAF AEE A et as eo REN saa ca Bees < 14

Stegall v. WTWV, Inc., 609 So.2d 348 (Miss. 1992) .... 17

Sweeney v. Prisoners’ Legal Services of New York,

Inc., 84 N.Y.2d 786, 622 N.Y.S.2d 896, 647 N.E.2d

OE Be ci ake voteecraxaebnacla yeas weep eeesss 16

Warford v. Lexington Herald-Leader Co., 789 S.W.2d

758 (Ky. 1990), cert. denied, 498 U.S. 1047 (1991) .... 17

OTHER MATERIALS

Driscoll, The Scope of Independent Appellate Court

Review in Public Person Libel Cases, 14 Loyola

Bee: Tae Ser RAS tds Wek er adeedtesspewee ses es’ 11

7

In The

Supreme Court of the United States

October Term, 1995

+

DAN COODY,

Petitioner,

THOMSON NEWSPAPER PUBLISHING, INC., et al.,

Respondents.

+

Petition For Writ Of Certiorari

To The Supreme Court Of Arkansas

+

PETITION FOR WRIT OF CERTIORARI

+

Petitioner Dan Coody respectfully petitions for a writ

of certiorari to review the decision of the Supreme Court

of Arkansas in this case.

OPINION BELOW

The opinion of the Supreme Court of Arkansas (App.

1) is reported at 320 Ark. 455, 896 S.W.2d 897.

S

JURISDICTION

The judgment of the Supreme Court of Arkansas was

entered on May 8, 1995. A timely petition for rehearing

was denied on June 12, 1995. (App. 13). This Court has

jurisdiction pursuant to 28 U.S.C. § 1257(a).

¢

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment I

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people 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 jurisdiction 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, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE

This libel case arose from a heated political campaign

in Fayetteville, Arkansas, during the fall of 1992. Peti-

tioner Dan Coody filed suit in the Washington County

Circuit Court against Respondents Thomson Newspaper

Publishing, Inc., d/b/a Northwest Arkansas Times, and

S.D. “Dave” Stokes, who was then an employee of Thom-

son and the publisher of the newspaper.

Coody’s complaint was grounded in an editorial and

a news story published in the Times during the Fayet-

teville mayoral race. A member of the city’s board of

directors, Coody sought the mayor’s position after citi-

zens approved changing to the mayor-alderman form of

government from the city manager form. The race was

hotly contested, and Coody was among the front runners.

A poll taken the week before the election showed him in

the lead.

The first of the two articles was an editorial pub-

lished on Saturday, October 31 - three days before the

election. Bearing the headline “It’s time for Coody’s

facade to come off,” the editorial was “signed” by Stokes,

a departure from the usual custom at the Times, and was

not approved in advance by the newspaper’s editorial

board. Although the Times generally did not, as a matter

of policy, choose sides in local elections, the editorial was

critical of Coody and suggested that he was not fit to be

mayor.

In particular, the editorial expressly accused Coody

of “attempt[ing] to mislead the public about who he is

and what he stands for.” It also accused him of having

“set up” a letter-writing campaign aimed at the news-

paper and mentioned “rumors” that had been circulating

about Coody’s past. According to those rumors, Coody

had a criminal record and had served time in prison.

While the content of those rumors was not specified in

the editorial, Stokes wrote that he had previously “sup-

ported stories that expose wrong-doing by government

and political figures.”

Before the editorial appeared, Stokes had hired a

private investigator to check into Coody’s life in Texas,

where he lived before moving to Fayetteville in 1986. The

investigator, whose work had not been completed when

the editorial was published, found that Coody had no

criminal record and described him as “squeaky clean.”

Coody had previously provided the newspaper with

copies of state police reports from Arkansas and Texas

indicating that he had no criminal record in either state.

The second article, a news story headlined “Times

publisher defends probe into past of mayor candidate,”

was published on election day: Tuesday, November 3.

Written by the Times reporter who had been covering the

mayor’s race, the front-page article confirmed Stokes’

hiring of a private investigator and the newspaper’s

“leading role” in investigating Coody’s background.

Stokes explained that he uncovered some “major discrep-

ancies” in the investigator’s report, which “created more

questions than it had answered.” Stokes also said that the

private investigator had “failed to turn up any informa-

tion on Coody’s life between the mid-1970s and 1986,

when he moved to Fayetteville.”

According to the article, Stokes based his claim of

“major discrepancies” on information that he had

received from former residents of Beaumont, Texas, who

had known Coody in high school. However, Stokes’ had

only one such source, Kathy Flynn, with whom he spoke

after publication of the editorial. During their conversa-

tion, she told him that she had no “factual information”

about Coody and could provide only her “impressions.”

Coody contended that the editorial and the news

story implied that he had a criminal record and an other-

wise unsavory past, which he was concealing from

voters, and accused him of lying during the campaign. In

addition, he claimed that the editorial portrayed him as

having engaged in unethical political activity, i.e., the

letter-writing “set-up.” He further asserted that the arti-

cles led to his losing the election, caused reputational and

emotional injury, and harmed his home renovation busi-

ness.

In a motion for summary judgment, Thomson and

Stokes argued that Coody, a public official, had not mus-

tered sufficient proof of actual malice, as required by New -

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

progeny. (R. 239-61) The circuit judge denied the motion

(R. 672-77), and the case was tried to a jury.

The evidence of actua! malice offered at the three-day

trial was circumstantial in nature. With respect to the

implication that he was attempting to conceal a criminal

past and mislead the public, Coody presented evidence to

demonstrate that Stokes had made a deliberate decision

not to acquire knowledge of facts that might confirm the

probable falsity of these charges. The evidence showed

that the editorial was published before Stokes conferred

with his only source and before he received the private

investigator’s report. In addition, Coody offered evidence

that Stokes possessed information that contradicted what

he ultimately published in the editorial and that his

reliance on the source as the basis for his comments in the

news story was questionable, since she offered only her

“impressions.”

With regard to letter-writing campaign, evidence was

presented to show that Stokes was openly hostile toward

Coody, was determined to prevent him from being

elected mayor, and had timed publication of the editorial

and news story to achieve maximum impact on the elec-

tion. There was also evidence suggesting the Times had a

financial motive in discrediting Coody, who, as a city

board member, had complained about the advertising

rates that the newspaper had charged the city. This evi-

dence was also relevant to the implication that Coody

was a liar attempting to hide a criminal record.

The jury returned a verdict in Coody’s favor, award-

ing him $275,000. Of that amount, $15,000 represented

compensatory damages, $250,000 punitive damages

against Thomson Newspapers, and $10,000 punitive dam-

ages against Stokes. In response to interrogatories, the

jury specifically found that the statements about Coody

were false and defamatory and had been published with

actual malice. The circuit court entered a judgment in

accordance with the verdict and denied a defense motion

for JNOV in which the sufficiency of the evidence of

actual malice was raised. (R. 727-46, 790-91).

The Supreme Court of Arkansas reversed, concluding

that Coody had “not met his burden of proving actual

malice by clear and convincing evidence.” App. 12. Tak-

ing the letter-writing issue first, the Court noted that

although Coody had testified that he did not conduct

such a campaign, “there is no evidence that Stokes was

aware that there was no campaign.” Id. at 9.

Turning to the implication of prior criminal conduct

and the accusation that Coody was misleading the public,

the court focused on Stokes’ source. “Although there are

discrepancies [in the testimony] regarding when Stokes

contacted [the source],” the court said, “there is no proof

that Stokes entertained serious doubts as to the truth of

his publication.” Id. at 11 (internal quotation omitted).

The court also suggested that the result would not be

different if one accepted the source’s testimony that she

was not contacted until after the editorial was published.

“[R]eckless conduct is not measured by whether a reason-

ably prudent man would have investigated before pub-

| lishing, but whether he, in fact, entertained serious

doubts as to the truth. .. . Id. at 12.

Wy) rn

With respect to evidence of Stokes’ hostility toward

Coody, the court pointed out that “ill will is admissible

circumstantial evidence of actual malice.” Despite such

evidence, however, “the proof does not establish actual

malice with convincing clarity.” Id. at 11.

| .

REASONS FOR GRANTING THE PETITION

In Harte-Hanks Communications, Inc. v. Connaughton,

491 U.S. 657 (1989), Justice Stevens observed that “[wle

have not gone so far . . . as to accord the press absolute

immunity in its coverage of public figures or elections.”

Id. at 688. By misapplying that decision in the instant

case, however, the court below has as a practical matter

done just that. Unfortunately, the Arkansas Supreme

Court is not alone in experiencing difficulties with Harte-

Hanks, and this case provides an excellent opportunity for

this Court to revisit and clarify two related issues

addressed in that decision: the scope of independent

appellate review and the proof of actual malice.

A. THE LOWER COURTS ARE DIVIDED OVER

THE PROPER SCOPE OF INDEPENDENT

APPELLATE REVIEW IN LIBEL CASES

In Bose Corp. v. Consumers Union, 466 U.S. 485 (1984),

-this Court held that appellate courts must exercise inde-

pendent judgment and determine whether the record

establishes actual malice with convincing clarity. The

Harte-Hanks decision, however, makes plain that cred-

ibility determinations are not reviewed independently on

appeal, since “the trier of fact has had the opportunity to

observe the demeanor of the witnesses.” 491 U.S. at 688

(internal quotation omitted).

This Court also declined in Harte-Hanks to second-

guess the jury’s conclusions with regard to various sub-

sidiary facts that were central to its ultimate finding of

actual malice. Writing for the Court, Justice Stevens iden-

tified three subsidiary factual issues that were in dispute,

noted that the jury “must have rejected” the defendant

newspaper’s position with respect to those issues, and

considered the jury’s apparent findings (along with

undisputed evidence) in holding that the newspaper had

acted with actual malice. Id. at 690-91.

In a separate opinion, Justice Scalia described the

majority’s approach as follows:

This analysis adopts the most significant ele-

ment of the [method used in the Court of

Appeals], since it accepts the jury’s determina-

tion of at least the necessarily found contro-

verted facts, rather than making an independent

resolution of that conflicting testimony. Of

course the Court examines the evidence . . . to

determine that the jury could reasonably have

reached that conclusion. But the Court does not

purport to be exercising its own independent

judgment as to [those fact questions].

Id. at 698.

The Chief Justice, as well as Justices Kennedy and

White, described Justice Scalia’s view as consistent with

the majority opinion, which all three joined. Id. at 694

(concurring opinion of the Chief Justice, joined by Justice

White) and 696 (concurring opinion of Justice Kennedy).

As the Chief Justice observed:

[I]n cases like this the historical facts — e.g., who

did what to whom and when - are reviewable

only under the clearly erroneous standard... .

Credibility determinations fall in this category,

as does the issue of knowledge of falsity. But

... the reckless disregard component of the New

York Times Co. v. Sullivan “actual malice” stan-

dard is not a question of historical fact. A trial

court’s determination of that issue therefore is

to be reviewed independently by the appellate

court.

Id. at 694.

10

Despite the Harte-Hanks decision, the lower courts

are divided as to the proper scope of appellate review in

defamation cases, even insofar as credibility findings are

concerned. At one extreme is the Ninth Circuit’s decision

in Newton v. National Broadcasting Co., 930 F.2d 662 (9th

Cir. 1990), cert. denied, 502 U.S. 866 (1991), which holds

that Harte-Hanks creates at most a “credibility exception”

to the rule of independent appellate review. With respect

to findings that involve the “weighing of evidence and

drawing of inferences,” the court said, the presumption

of correctness “applies with less force” and the findings

are subject to more intensive appellate scrutiny. Id. at 671.

Under this approach, little deference is given to findings

of subsidiary fact.!

Indeed, the Newton court did not bother to defer to

some jury findings that turned on credibility. As one

commentator has noted:

The [court] expressed concern that the jury was

biased in its verdict in favor of the [plaintiff, a

“local hero”] and warned that “we cannot

ignore the risk that a jury’s credibility deter-

minations may also subvert those [First Amend-

ment] values.” The court undertook an

extensive recitation and review of the testi-

monial evidence and even singled out certain

credibility determinations to which it was not

willing to defer.

1 Other decisions reflecting such broad appellate review

include McCoy v. Hearst Corp., 227 Cal. App. 3d 1657, 278 Cal.

Rptr. 596 (1991), cert. denied, 502 U.S. 1060 (1992), and Lyons v.

Rhode Island Public Employees Council, 559 A.2d 130 (R.L.), cert.

denied, 493 U.S. 892 (1989).

11

Driscoll, The Scope of Independent Appellate Court Review in

Public Person Libel Cases, 14 Loyola Ent. L. J. 257, 275-76

(1994).

At the other end of the spectrum - and far more

consistent with Harte-Hanks - is the Kentucky Supreme

Court’s decision in Ball v. E.W. Scripps Co., 801 S.W.2d 684

(Ky. 1990), cert. denied, 499 U.S. 976 (1991). There the court

flatly refused to exercise independent review with respect

to subsidiary facts. After discussing Harte-Hanks at some

length, the court said:

At least in deciding what are the so-called

underlying, subsidiary or historical facts, as

contrasted with the finding of malice, where the

evidence conflicts appellate review still must be

in terms of what the jury could find as the true

facts and what the jury could reasonably infer

from the testimony of witnesses when consid-

ered as a whole. We accept the jury’s finding as

to disputed facts when there is supporting evi-

dence because we claim no superior ability to

divine the truth by reason of judicial office, and

we question the good judgment of any judge

who thinks he has such special powers.

Id. at 688 (internal citation omitted).?

The instant case eschews the judicial restraint evident

in Ball v. E.W. Scripps in favor of a level of appellate

scrutiny that appears to go even further than the intru-

sive approach sanctioned by the Ninth Circuit in Newton.

2 Other cases reflecting this position include Hinerman v.

Daily Gazette Co., 423 S.E.2d 560 (W.Va. 1992), cert. denied, 113

S.Ct. 1384 (1993), and Seropian v. Forman, 652 So.2d 490 (Fla.

App. 1995).

12

By substituting its own judgment for that of the jury with

respect to credibility determinations as well as subsidiary

facts, the Arkansas Supreme Court has shown little

regard for jury findings of any type.

In terms of credibility, for example, the court recog-

nized that “the jury apparently believed” Coody’s testi-

mony that “he did not tell Stokes who ‘he should and

should not listen to’ in a conversation they had shortly

after Stokes came to Fayetteville.” App. 9. Nonetheless,

the court chose to credit Stokes’ account of the conversa-

tion. Id. Moreover, Coody testified that there had been no

letters-to-the-editor “campaign” on behalf of his can-

didacy, and the jury plainly believed him. The court,

however, dismissed this testimony as insufficient, since

“there is no evidence that Stokes was aware that there

was no campaign.” Id. at 9. This is a back-handed way of

saying that the jury erred in discrediting Stokes’ testi-

mony that he thought there was such an organized effort,

largely on the basis of a single letter.

Had the court applied the approach taken in Ball, the

jury, having chosen to disbelieve Stokes, was free to infer

that he had no factual basis for his statement, in the

October 31 editorial, that “there was some sort of ‘set

up’” regarding letters to the editor on Coody’s behalf.

This subsidiary fact — i.e., that the defamatory statement

was not grounded in fact —- is one of many which, taken

together, support the jury’s ultimate conclusion that the

offending material was published with actual malice.

In this respect, the instant case is quite similar to

Harte-Hanks, in which the jury apparently rejected certain

explanations offered by employees of the defendant

13

newspaper. This Court accepted the jury’s apparent find-

ings as true and considered them, along with other facts,

in deciding whether there was adequate evidence of

actual malice. 491 U.S. at 690-91. In sharp contrast, how-

ever, the Arkansas Supreme Court credited Stokes’ expla-

nation of the letter-writing charge — an explanation that

the jury plainly rejected. This approach is tantamount to

permitting a libel defendant to escape liability simply by

testifying that he believed what he published to be true.

Moreover, it effectively prohibits a libel plaintiff from

proving actual malice via circumstantial evidence, as

Harte-Hanks plainly allows.

The court also decided to credit Stokes’ statement

that he spoke with his source prior to publishing the

editorial, despite the source’s own testimony to the con-

trary. App. 10. Even under the two-tier approach of New-

ton, this discrepancy in the testimony would have been

entitled to a strong presumption of correctness; obvi-

ously, the jury did not believe Stokes. If this subsidiary

fact were taken into account, circumstantial evidence

would exist as actual malice, since Stokes rushed the

editorial into print on the weekend before the election

without having spoken to his only source and without

waiting for the report of his own private investigator.

In many respects, the instant case is similar to Bressler

v. Fortune Magazine, 971 F.2d 1226 (6th Cir. 1992), cert.

denied, 113 S.Ct. 1416 (1993), in which a divided Sixth

Circuit panel reversed a $550,000 judgment in favor of a

public official. In a strong dissent, Judge Batchelder took

the majority to task for not giving the appropriate defer-

ence to the jury’s credibility determinations. After

reviewing the testimony, Judge Batchelder wrote:

14

This Court is required to perform an indepen-

dent review of the record in regard to actual

malice to determine whether the plaintiff has

proved actual malice by clear and convincing

evidence. Where the record contains such evi-

dence, to overturn the jury’s finding of actual

malice because there is also evidence to the con-

trary, without regard to the jury’s right to disbe-

lieve that contrary evidence unless it was clearly

erroneous in doing so, is, in effect, to hold that

the jury may not find actual malice unless there

is no evidence in the record which, if believed,

would support a finding of good faith. That is

not the law.

Id. at 1256.

Petitioner urges this Court to take this opportunity to

make unmistakably clear that Judge Batchelder and the

Supreme Court of Kentucky are correct in their reading of

Harte-Hanks. Appellate courts are simply not equipped to

undertake independent review of subsidiary facts and

credibility determinations, and to permit them to do so

“would entirely displace the function of the jury in defa-

mation cases.” Starkins v. Bateman, 724 P.2d 1206, 1212

(Ariz. App. 1986).

B. THE DECISION BELOW CONFLICTS WITH

THOSE OF THIS COURT AND OTHER

COURTS REGARDING PROOF OF ACTUAL

MALICE

At various points in its opinion in the instant case,

the Supreme Court of Arkansas pointed out that the

actual malice standard requires proof that the defendant

—-

15

“entertained serious doubts as to the truth of his publica-

tion.” E.g., App. at 11, 12. This statement is correct, as far

as it goes. However, the actual malice requirement is

more complex, and the court’s emphasis on this one

aspect skewed its analysis and effectively deprived Peti-

tioner of any opportunity to establish actual malice.

In Harte-Hanks, this Court reiterated that a public

official or public figure must show that the defendant

“entertained serious doubts as to the truth” and made

clear that he may do so in two ways. First, he may

establish the defendant’s state of mind by evidence that

the defendant “actually had a high degree of awareness

of probable falsity.” Second, he may show that the cir-

cumstances surrounding publication gave the defendant

“obvious reasons to doubt the veracity of the informant

or the accuracy of his reports” and that the defendant

failed to take reasonable steps to dispel those doubts. 491

U.S. at 688.

Where there is proof of a “high degree of awareness

of probable falsity,” that alone will establish that the

defendant in fact entertained “serious doubts” as to the

truth. Where such direct proof is absent, the jury may

infer from the circumstances that the publisher was

aware of the falsity. It may do so, for example, if it finds

that there were “obvious reasons” for the defendant to

doubt the veracity of a source or the accuracy of a story

and that the defendant did not act reasonably in dispell-

ing those doubts. While failure to investigate will not

alone support a finding of actual malice, “the purposeful

avoidance of the truth is in a different category.” Id. at

692.

16

The lower courts have long struggled with the actual

malice rule in general and the “serious doubts” require-

ment in particular. Since Harte-Hanks, more difficulties

have arisen as courts have had to distinguish between a

mere “failure to investigate” on the one hand and “the

purposeful avoidance of the truth” on the other. See, e.g.,

Sweeney v. Prisoners’ Legal Services of New York, Inc., 84

N.Y.2d 786, 622 N.Y.S.2d 896, 647 N.E.2d 101 (1995);

Brewer v. Rogers, 439 S.E.2d 77 (Ga. App. 1993), cert.

denied, 114 S.Ct. 2712 (1994).

These problems are compounded if courts are reluc-

tant or unwilling to give much weight to circumstantial

evidence, despite the clear statement in Harte-Hanks that

such proof may be employed to demonstrate actual mal-

ice. That was the problem in the instant case. The

Supreme Court of Arkansas failed to accord any weight to

circumstantial evidence from which the jury could rea-

sonably conclude that the offending articles'were pub-

lished with reckless disregard for the truth.

One example makes the point. The evidence showed

that Stokes did not speak with his only source as to

Coody’s background before publishing the offending edi-

torial and that he did not bother to wait for a report from

the private investigator he had retained. Under these

circumstances, the jury reasonably concluded that the

editorial was based solely on rumors, of which Stokes

was aware, that had been circulating in the community. In

this situation, there were “obvious reasons” for Stokes to

doubt the accuracy of the published information, partic-

ularly in light of the fact that Coody had provided the

newspaper with contrary evidence in the form of official

records. See Masson v. The New Yorker Magazine, Inc., 960

——

17

F.2d 896, 900 (9th Cir. 1992); Currier v. Western Newspapers,

Inc., 855 P.2d 1351, 1354 (Ariz. 1993); Stegall v. WTWYV,

Inc., 609 So.2d 348, 351 (Miss. 1992).%

From this evidence, the jury was entitled to infer that

Thomson and Stokes were purposefully avoiding the

truth because it did not advance their cause, i.e., to ensure

that Coody, an “anti-establishment” candidate who was

leading in the polls, was defeated on election day. Cir-

cumstantial evidence that they did not care about the

truth because it did not serve their purpose is surely

sufficient under Harte-Hanks to establish reckless disre-

gard.4

In sharp contrast to the instant case is Hinerman v.

Daily Gazette Co., 423 S.E.2d 560 (W.Va. 1992), cert. denied,

113 S.Ct. 1384 (1993). There the defendant newspaper, at

3 The same result follows even if one were to credit Stokes’

testimony that he spoke with his source prior to publishing, for

she offered only her “impressions,” not factual information.

Construing ambiguous statements in a manner that is most

damaging to the plaintiff is evidence of reckless disregard for

the truth. Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758,

773 (Ky. 1990), cert. denied, 498 U.S. 1047 (1991).

4 The court’s refusal to credit circumstantial evidence was

not limited to this one instance. As noted previously, Coody

claimed that the editorial falsely accused him of orchestrating a

“set-up,” i.e., a letters-to-the-editor campaign on his behalf.

While purporting to give little weight to Stokes’ testimony that

he believed this to be true, the court said that there was “no

evidence that Stokes was aware that there was no [letter-writ-

ing] campaign.” App. 9. Obviously, Coody was in no position to

produce direct evidence on this point, since such “awareness” is

within Stokes’ exclusive control. See Currier, supra, 855 P.2d at

1355 (“Plaintiffs did not, and likely cannot, directly controvert

[defendant's] bald assertion of subjective belief”).

18

the insistence of its publisher, printed an editorial imply-

ing that the plaintiff, a lawyer who also held public office,

had engaged in dishonest and unethical conduct. In find-

ing clear and convincing evidence of actual malice, the

court emphasized that the publisher, who tightly con-

trolled the paper’s editorial policy, “bore a strong animus

towards lawyers in general and . . . regularly wrote

editorials highly critical of lawyers and the legal profes-

sion.” Additional circumstantial evidence could be found

in the newspaper’s “gross deviations from generally

accepted standards of journalism.” See Harte-Hanks, 491

U.S. at 667-68. Before the editorial was published, “no

effort was made to contact [the plaintiff] to determine

whether he had anything to say for himself that might

make him look less reprehensible or might refute the facts

alleged in the editorial.” 423 S.E.2d at 577.

This Court and others have also taken into account

evidence of actual malice that the Arkansas Supreme

Court ignored in the case at bar. Such evidence includes:

— The defendant possessed information that contra-

dicted what he ultimately published. Harte-Hanks, 491

U.S. at 690-91; Goldwater v. Ginzburg, 414 F.2d 324, 336 (2d

Cir. 1969), cert. denied, 396 U.S. 1049 (1970).

— The defendant did not conduct a complete investi-

gation. Harte-Hanks, 491 U.S. at 685; Kuhn v. Tribune-

Republican Publishing Co., 637 P.2d 315, 319 (Colo. 1981).

— The defendant relied on a questionable source for

his information. Harte-Hanks, 491 U.S. at 692; Herron v.

KING Broadcasting Co., 746 P.2d 295, 303 (Wash. 1987), on

rehearing, 776 P.2d 98 (Wash. 1989).

19

— The defendant had a financial motive in publishing

the information. Connaughton v. Harte-Hanks Communica-

tions, Inc., 842 F.2d 825, 843 (6th Cir. 1988), aff'd, 419 U.S.

657 (1989).

- The defendant held a particular point of view

toward the subject. Goldwater, 414 F.2d at 328.

- The defendant supported the plaintiff’s opponent

in an election and sought to discredit the plaintiff in the

eyes of voters. Connaughton, 842 F.2d at 843-44; Goldwater,

414 F.2d at 328-29, 337. ;

- The defendant timed publication of the story to

achieve maximum impact. Connaughton, 842 F.2d at 844.

By disregarding such evidence and by taking an

extremely rigid view of the “serious doubt” requirement,

the court below made it virtually impossible for Peti-

tioner to prevail. Other courts have also turned the actual

malice rule into an insurmountable obstacle for public

plaintiffs. This case thus presents an opportunity for this

Court to refine the standard and strike an appropriate

balance between reputational interests and First Amend-

ment concerns. As Chief Justice Warren once observed,

“[f]reedom of the press . . . does not include absolute

license to destroy lives or careers.” Curtis Publishing Co. v.

Butts, 388 U.S. 130, 170 (1967) (concurring opinion).

¢

20

. CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

J Rose III*

JOHN VANWINKLE

Rose & VANWINKLE

P.O. Box 1504

Fayetteville, Arkansas 72702

(501) 443-5700

* Counsel of Record

App. 1

APPENDIX

A. OPINION BELOW

The Supreme Court of Arkansas

320 Ark. 455, 896 S.W.2d 897

Thomson Newspaper Publishing Co., d/b/a Northwest

Arkansas Times, and S.D. “Dave” Stokes, Individually

and as Publisher of Northwest Arkansas Times, Appel-

lants, v. Dan Coody, Appellee, No. 94-980.

May 8, 1995.

ANDREE LAYTON ROAF, Justice.

This appeal involves a libel action filed by appellee

Dan Coody against the appellants, Thomson Newspaper

Publishing, Inc., d/b/a Northwest Arkansas Times (Times),

and S.D. “Dave” Stokes, individually and as publisher of

the Times. A jury awarded Dan Coody $275,000.00 in

compensatory and punitive damages. Appellants raise

four points for our review: (1) appellee failed to submit

any evidence of libel upon which the jury could base a

verdict for appellee; (2) appellee failed to prove actual

malice on the part of the appellants by clear and convinc-

ing evidence; (3) the trial court erred in allowing evi-

dence of common law malice on the issue of

constitutional malice; and (4) the trial court erred in

allowing an award of compensatory damages to appellee

based upon insufficient and speculative evidence. We

hold that the evidence was insufficient to support a find-

ing of actual malice and the judgment is accordingly

reversed.

App. 2

FACTS

Dan Coody and his spouse, Deborah, relocated to

Fayetteville from Texas in 1987. The Coodys had been

self-employed home builders in Texas and engaged in

home remodeling and carpentry work after moving to

Fayetteville. In November 1990, Coody was elected to a

four-year term on the City Board of Directors of Fayette-

ville. Prior to his election, Coody had a strong interest in

historical preservation and environmental issues and

actively opposed such measures as the location of a bar

next to an elementary school. After his election, he

opposed the development of a new regional airport in the

Bentonville area. In May 1992, Fayetteville voted to

change its form of government from city manager to

mayor-alderman effective January 1, 1993, and an election

was to be held in November 1992 for the new mayoral

and aldermanic positions.

Coody announced his decision to run for the position

of mayor in August 1992. At the time of his announce-

ment, appellant Dave Stokes was the publisher of the

Times and had come to Fayetteville in September 1991 to

assume this position. Coody had been openly critical of

the Times and Stokes in the months prior to the election,

questioning the paper’s journalistic integrity and objec-

tivity, and criticizing the relationship between Stokes and

the local Chamber of Commerce. Coody had also

attempted to divert the city’s legal advertising away from

the Times to a competing area newspaper.

During his campaign for mayor, Coody began hear-

ing rumors that he was secretive about his past prior to

moving to Fayetteville, because he had been involved in

App. 3

criminal activities while in Texas. The rumored activities

varied from armed robbery, writing hot checks, and con-

viction for a drug offense. It was also rumored that

Coody was abusive to women. Coody paid a visit to

Stokes’ office in late Septernber 1992 to inquire if Stokes

had heard the rumors and to deny that he had ever been

in trouble with the law. Stokes acknowledged hearing the

rumors. Coody’s offer to provide Stokes with information

to repudiate the rumors was declined. Stokes stated that

“[w]le have ways of finding these things out.”

In late September, Coody wrote the Texas Depart-

ment of Public Safety and the Arkansas State Police,

submitting his full name, birthdate and fingerprints, and

requested information regarding any felony or misde-

meanor conviction. He received replies from both stating

that no criminal records were found. Coody delivered

copies of these replies to a reporter from the Times and

also to the Springdale Morning News.

The election was scheduled for Tuesday, November 3,

1992. On Thursday, October 29, 1992, Stokes learned of a

poll which showed that Coody was in the lead for the

mayor’s race. On Friday, October 30, 1992, one of Coody’s

opponents, Glenn Sowder, held a press conference and

aired a recording of a message left by Coody on a tele-

phone answering machine in which Coody, using pro-

fanity, complained about one of Sowder’s supporters

having accused him of being abusive to his wife and

other women. On that same day, Stokes engaged a private

investigator to delve into Coody’s background in Texas.

Stokes also claimed to have received information on

Thursday, October 29, 1992, concerning Coody’s criminal

history from a Fayetteville resident who was Coody’s

App. 4

high school classmate in Beaumont, Texas; however, the

informant testified that she was not contacted by Stokes

until Monday, November 2, 1992, at the earliest.

On Saturday, October 31, 1992, the first of the two

articles at issue in this case was published on the editorial

page of the paper and attributed to Dave Stokes, pub-

lisher. The two column article was captioned in large,

bold letters, “It’s time for Coody’s facade to come off,”

alleged Coody “set up” a letter writing campaign sup-

porting his candidacy, and mentioned that the author had

begun “hearing rumors about Coody” shortly after he

declared for mayor but “did not give credence to these

rumors,” because of the desire to keep the campaign as

clean as possible. The article stated that “it’s time for the

gloves to come off” and went on to accuse Coody of

attempting to “mislead the public about who he is and

what he stands for,” and of exhibiting behavior which

casts doubt on his ability to perform under stress. The

article included a transcript of the telephone message left

for Sowder by Coody with abbreviations and dashes for

the profanity used and went on to question, “What's

Coody so nervous about?” The article further accused

Coody of attacking the newspaper and Stokes because he

could not get his way and dictate what the paper printed,

accused him of making slurs against Fayetteville, accused

him of making accusations without substance in his

capacity as councilman and then backing down when his

hand was called, and concluded by stating that Coody’s

rhetoric about loyalties for Fayetteville is a “thin facade

covering his real loyalty — to himself.”

On Monday, November 2, 1992, Stokes received the

private investigator’s report which contained no adverse

App. 5

information on Coody and Stokes also contacted the

informant. Coody held a press conference on Monday

and provided information regarding his background and

work history and also published a full page ad in the

Times to counter-act the effect of the “facade” article.

On Tuesday, November 3, the morning of the elec-

tion, the Times ran the second article, an interview of

Stokes, under the byline of reporter Rusty Garrett. The

article was captioned “Times publisher defends probe into

past of mayoral candidate.” The article stated that Stokes

had “taken a leading role” in researching the life and

activities of Coody prior to his arrival in Fayetteville and

admitted to the employment of a private investigator. The

article quoted Stokes as stating he had “uncovered some

major discrepancies between information contained in the

[investigative] report and that he subsequently received

from former Beaumont [Texas] residents who say they

knew Coody in high school.” Stokes further alleged that

the investigation was necessary because Coody “continu-

ally refused to answer [questions about his past] through-

out the campaign,” and it was conducted to “get the real

truth” concerning Coody. Stokes explained that a similar

investigation was not conducted on the other four may-

oral candidates because they “had not been the subject of

rumors with the ‘severity’ of those circulated about

Coody.”

Stokes went on to state that the investigation

revealed that Coody’s early life was “very admirable,”

and he questioned why Coody had not used information

concerning his activities in Texas in his campaign. Stokes

stated that the probe failed to turn up any information on

Coody’s life between the mid 1970’s and 1986 when he

App. 6

moved to Fayetteville and that the report “had created

more questions than it had answered.” Stokes accused

Coody of not providing details about his past or outlining

his past year-by-year.

After losing the election, Coody filed an action for

damages against appellants, alleging that the editorial

and article published on October 31 and November 2,

1992, contained defamatory and libelous statements

which were made with actual and common law malice.

He asked for compensation for actual damages to his

emotional well-being, personal dignity, disruption of

relationships with friends and family, damage to business

reputation, standing in the community, and public image,

and also requested that punitive damages be awarded.

Appellants appeal from the judgment entered in favor of

Coody and from the order denying their motion for judg-

ment notwithstanding the verdict. It is undisputed on

appeal that Coody was a public figure.

A defamation action turns on whether the communi-

cation or publication tends or is reasonably calculated to

cause harm to another’s reputation. Little Rock Newspapers

v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983). Further-

more, “[a] public figure may not recover damages for a

defamatory falsehood without clear and convincing proof

that the false ‘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.’ ” Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657 (1989)

(quoting New York Times Co. v. Sullivan, 376 U.S. 254

(1964)). The Supreme Court has recognized that where

the first amendment is involved, the appellate court is

obligated to make an independent examination of the

App. 7

whole record to make sure the judgment does not consti-

tute a forbidden intrusion on the field of free expression.

Harte-Hanks, supra; Fuller v. Russell, 311 Ark. 108, 842

S.W.2d 12 (1992). However, the heightened standard of

appellate review applies only to review of the finding of

actual malice, and not to the determination of libel. Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984).

The standard of review for the issue of defamation and

other factual findings is whether the jury’s verdict can be

supported by substantial evidence. Allred v. DeMuth, 319

Ark. 62, 890 S.W.2d 578 (1994); Little Rock Newspapers,

supra.

EVIDENCE OF LIBEL

The jury found, from a preponderance of the evi-

dence, that stated or implied facts published by the

appellants in the two articles, were defamatory and false.

Coody’s principal contention was that the articles

accused him of concealing a criminal past and that he had

proven by his own denial and the reports submitted by

him from the Texas and Arkansas authorities that he had

no such past. Because the articles did not specifically

mention the nature of the rumors about Coody’s past but

instead indicated that he was misleading the public and

had something to hide, his claim was one of defamation

by innuendo. See Pritchard v. Times Southwest Broadcasting,

277 Ark. 458, 642 S.W.2d 877 (1982). Also, Coody con-

tends the statements regarding the letter writing cam-

paign, his attempts to control to whom the appellants

should listen, and the allegations that he was attempting

to mislead the public about who he was and what he

stood for were defamatory comments on his fitness and

App. 8

desirability as a mayoral candidate. See Harte-Hanks,

supra.

For purposes of this case, we need not review the

findings of the jury that the articles in question contained

stated or implied facts which were defamatory and false.

Appellee, as a public figure, had the additional burden of

proving that such false statements were made with actual

malice, and he has failed to meet this burden.

ACTUAL MALICE

This court must conduct an independent review to

determine whether there was clear and convincing evi-

dence that the statements were made with actual malice.

Harte-Hanks, supra; New York Times, supra. The question of

whether the evidence in the record is sufficient to support

a finding of actual malice is a question of law. Id. In

discussing the actual malice standard the court has recog-

nized:

[T]he plaintiff in such an action must prove that

the defamatory publication “was made with

‘actual malice’ — that is, with knowledge that it

was false or with reckless disregard of whether

it was false or not.”

These cases are clear that reckless conduct is not

measured by whether a reasonably prudent man

would have published, or would have investi-

gated before publishing. There must be suffi-

cient evidence to permit the conclusion that the

defendant in fact entertained serious doubts as

to the truth of his publication. Publishing with

App. 9

such doubts shows reckless disregard for truth

or falsity and demonstrates actual malice.

The defendant in a defamation action

brought by a public official cannot, however,

automatically insure a favorable verdict by testi-

fying 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.

Fuller v. Russell, 311 Ark. 108, 842 S.W.2d 12 (1992) (quot-

ing St. Amant v. Thompson, 390 U.S. 727, 728, 731, 732

(1968)).

At trial, Stokes testified he believed his statements to

be true, but this is of little consequence in making the

actual malice determination. Jd. However, the appellee

has failed to present convincing evidence of appellants’

awareness of the probable falsity of the statements.

Coody testified he did not conduct a letter writing cam-

paign; however, there is no evidence that Stokes was

aware that there was no campaign. Further, Coody testi-

fied he did not tell Stokes who “he should and should not

listen to” in a conversation they had shortly after Stokes

came to Fayetteville to assume the position as publisher

of the Times. Based upon the verdict, the jury apparently

believed that Coody, in fact, did not make such a state-

ment to Stokes. However, in Bose Corp. v. Consumers

Union of U.S., Inc., 466 U.S. 485 (1984), the Supreme Court

examined the effect of an “inaccurate description of what

Seligson [the author] had actually perceived.” The Court

noted that the “language chosen was ‘one of a number of

possible rational interpretations’ of an event ‘that bristled

App. 10

with ambiguities’ and descriptive challenges for the

writer.” Id. The Court concluded that the choice of such

language, though reflecting a misconception, does not

place the speech beyond the outer limits of the First

Amendment’s broad protective umbrella.

Although Bose, supra, addressed the writer’s opinion

regarding the quality of a loudspeaker system, we find

the principles discussed apply generally to a listener’s

perception. Thus, Stokes’ perception, even though possi-

bly mistaken, of a conversation which admittedly

occurred must be protected. Coody’s testimony of the

event simply does not constitute clear and convincing

evidence of actual malice.

As to the rumors and the assertions that Coody was

misleading the public, the evidence does not support a

finding of actual malice. The chronology of events sur-

rounding the publication of the rumors is as follows: the

testimony clearly established that rumors of Coody’s

alleged criminal past were circulating prior to October of

1992. Stokes testified he contacted the informant, Ms.

Flynn, on the evening of October 29, and, as a result of

that conversation, he decided to hire a private investiga-

tor. On Friday, October 30, 1992, Stokes hired a private

investigator to research Coody’s past. Stokes testified he

received the investigator’s report on Monday and he

contacted the informant to verify her version.

Ms. Flynn, however, testified she did not remember

talking to Stokes prior to the publication of the October

31 article. She testified that, to the best of her knowledge,

she was first contacted on Monday, November 2. Ms.

Flynn testified she told Stokes that she thought Coody

App. 11

had a questionable, at best, reputation in high school. She

believed Coody had been involved with the police, but

she did not provide any specifics, and further stated that

she informed Stokes these were merely her impressions

because she did not have any factual information.

The appellee submits that although failure to investi-

gate will not alone support a finding of actual malice, the

purposeful avoidance of the truth is a different matter.

Harte-Hanks, supra. However, there is no convincing proof

that the appellants purposefully avoided the truth.

Although there are discrepancies regarding when Stokes

contacted Ms. Flynn, there is no proof that Stokes “enter-

tained serious doubts as to the truth of his publication.”

In addition, the appellee cites evidence that Stokes

was “hostile” towards Coody. Other employees of the

Times testified that Stokes was motivated by his desire

not to see Dan Coody in office, that Stokes did not believe

Coody was a good candidate, and that he believed he had

something to hide. A former employee of the Times testi-

fied Stokes stated in June of 1992 that he thought Coody

had been involved in illegal activities and he was going

to hire a private investigator.

It has been recognized that ill will is admissible

circumstantial evidence of actual malice. Harte-Hanks,

supra. However, even though there is some circumstantial

evidence, the proof does not establish actual malice with

convincing clarity. Coody seems to argue that both the

hiring of the investigator and then not waiting for his

report is evidence of actual malice. Coody also points out

that Stokes did not talk to Ms. Flynn prior to the October

App. 12

31 article, because of her testimony that Stokes first con-

tacted her on Monday, November 2. Nevertheless, reck-

less conduct is not measured by whether a reasonably

prudent man would have investigated before publishing,

but whether he, in fact, entertained serious doubts as to

the truth of the publication. Harte-Hanks, supra. Appellee

has simply not met his burden of proving actual malice

by clear and convincing evidence.

CONSTITUTIONAL MALICE AND

AWARD OF COMPENSATORY DAMAGES

For appellants’ third and fourth points, they argue

that the trial court erred in allowing evidence of common

law malice on the issue of “constitutional malice,” and

that the trial court erred in allowing an award of compen-

satory damages based upon insufficient and speculative

evidence. Because we reverse on the issue of actual mal-

ice, we do not address these issues.

Reversed and dismissed.

App. 13

B. DENIAL OF PETITION FOR REHEARING

Office of the Clerk

Supreme Court of The State of Arkansas

Arkansas Court of Appeals

Justice Building

625 Marshall Street

Little Rock, AR 72201

June 12, 1995

Jim Rose III

and John VanWinkle

Attorneys at Law

P.O. Box 1504

Fayetteville, AR 72701

John J. Watkins

Attorney at Law

935 Sunset Dr.

Fayetteville, AR 72701

RE: 94 00908 THOMSON NEWSPAPER PUB. INC

D/B/A NW ARK

TIMES ET AL v. DAN COODY

Gentlemen:

The Arkansas Supreme Court made the following

order today in the above styled case:

“Petition for rehearing is denied.”

Sincerely,

Leslie W. Steen, Clerk

LWS:rh

cc: G. Alan Wooten

& J. Randall McGinnis

Kathleen Harness, Clerk

(#CIV93-4)