Opposition Brief — Griffin Television OKC, L. L. C. v. Mitchell

FILE TEL

( Q> ,

No. 02-1287

APR g_ 2003

In The CLERK

Supreme Court, U.S.

Supreme Court of the Anite

4

v

GRIFFIN TELEVISON OKC, L.L.C., and

CHRIS HALSNE,

Petitioners,

V.

H.L. MITCHELL, D.V.M.,

Respondent.

ro

v

On Petition For Writ Of Certiorari

To The Court Of Civil Appeals

Of The State Of Oklahoma

&

7

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

,

v

DOUGLAS E. STALL CLYDE A. MUCHMORE

LATHAM, STALL, WAGNER, Counsel of Record

STEELE & LEHMAN MARY H. TOLBERT

Boulder Towers CROWE & DUNLEVY

1437 South Boulder, A PROFESSIONAL CORPORATION

Suite 820 20 North Broadway,

Tulsa, Oklahoma 74119 Suite 1800

Tel. (918) 382-7523 Oklahoma City, Oklahoma

73102

Tel. (405) 235-7734

Counsel for Respondent

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

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

TA FE BT Fe vias cevcnssnevterisnsesivvinbeinivede ili

BALE MSR CFE ERM GATE oicccccssssescsecccsoscsssevevseyes 1

ARGUMENT AND AUTHORITIES .......................06. 9

I. THIS COURT LACKS JURISDICTION TO

REVIEW THE ORDER OF THE OKLA-

HOMA COURT OF CIVIL APPEALS BE-

CAUSE IT IS NOT A “FINAL JUDGMENT”

UNDE 20 U.B.0. § TDG TA) ......erecoreacsssesoones 9

A. The judgment of the Court of Civil Ap-

peals is not final under § 1257 because

there are further proceedings to occur at

SOD RAGE CONES TIGRE ncn inicsccnsinisrvecssccesecewes 10

B. This case does not fall within the fourth

exception to the finality rule articulated

Ri Ce BOD ORITIIT vise svcsisesscscsessccsvocesenes 11

1. A reversal of the Court of Civil Ap-

peals on the existence of actual mal-

ice would not preclude the further

proceedings contemplated below ........ 11

2. A refusal immediately to review the

Court of Civil Appeals’ decision will

not seriously erode federal policy ....... 15

3. The retrial on the issue of damages is

likely to raise additional federal is-

il

TABLE OF CONTENTS - Continued

Page

II. REVIEW OF THE PRIMARY QUESTION

PRESENTED IS UNNECESSARY BE-

CAUSE THE RECORD DEMONSTRATES

THAT THE OKLAHOMA COURT OF CIVIL

APPEALS APPLIED THE PROPER STAN-

DARD OF REVIEW TO THE QUESTION OF

ACTUAL, BERIT osvissinssvssiincccenvimavaeiadimabeaiies 17

III. REVIEW IS UNNECESSARY BECAUSE

THE COURT OF CIVIL APPEALS PROP-

ERLY CONCLUDED THAT THE RECORD

CONTAINS CLEAR AND CONVINCING

EVIDENCE OF ACTUAL MALICE................ 22

IV. PETITIONERS HAVE NOT PRESERVED

THE QUESTION OF WHETHER ACTUAL

MALICE MAY BE PREMISED ON A DE-

FENDANT’S RATIONAL INTERPRETA-

TION OF AN AMBIGUOUS PUBLIC

CUMIN! ...<0..<sillnacniinnmanaeduniamas a 26

CONCLU BION, ..ic0s00s+snssssesintennniaenaaaneae i 29

SS st a *

TABLE OF AUTHORITIES

Page(s)

CASES

BMW of North America v. Gore, 517 U.S. 559 (1996) ....... 17

Beal v. Bangor Pub’g Co., 714 A.2d 805 (Me. 1998)....23, 24

Bill Parker & Assocs. v. Rahr, 456 S.E.2d 221 (Ga.

App. 1995) ........ssscsssscesseceneeesstcesseesseessseseesseeesssesneeaeenes 19

Bose Corp. v. Consumers Union of United States,

BE FF ee GG CIS) vvcnnceevnersnssoscscrrecescscvossenes 18, 19, 22, 24

Bose Corp. v. Consumers Union of United States,

692 F.2d 189 (1st Cir. 1982), aff’d, 466 U.S. 485

a casiddcchoncinbnivlenenebshnednsanenniieerssenesesnenneunts 23

Brown v. Petrolite Corp., 965 F.2d 38 (5th Cir. 1992)........ 23

Colbert v. World Pub’g Co., 1987 OK 116, 747 P.2d

ee tn, saipilsdaunnisiinsuanndatnlansensqpeusssoess 12

Continental Nat. Gas, Inc. v. Midcoast Nat. Gas,

Inc., 1996 OK CIV APP 157, 935 P.2d 1185............:0006 27

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

a al saasisepenbananinbinenins shes 11, 12, 15, 16, 17

Curtis Pub'g Co. v. Butts, 388 U.S. 130 (1967)... 20

Dickinson v. Petroleum Conversion Corp., 338 U.S.

le sca penncusbesnibadinebavebapenrenesebneistinvnesontens 16

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

Ee FO I oo vcseaseeseveccocnsssosenssoceseovensesesnsussussoessen 14

Florida v. Thomas, 532 U.S. 774 (2001)..........c:eseseeeeeeeeeees 15

Flynt v. Ohio, 451 U.S. 619 (1981)... ceeeseeeerreeteereetsees 15

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ...........00+ 14

Harte-Hanks Communications, Inc. v. Connaugh-

ton, 491 U.S. 657 (1989)..........ccceseeeesereeeees 18, 19, 22, 24

TABLE OF AUTHORITIES — Continued

Page

Jefferson v. City of Tarrant, 522 U.S. 75 (1997).............608 9

Malson v. Palmer Broadcasting Group, 1997 OK 42,

Se CREED sihcsicsstcsidesinecuutincobestedinaciesdicadddidesidiaidagabvanbucediiasmdailcds 14

Market Street Ry. Co. v. Railroad Comm'n of Cal.,

ee rae I CD etncascikcinssisneniaisaticbaideienniaalasiiabilalguiiaiioiel Misicnits 9

Martin v. Griffin Television, Inc., 1976 OK 138, 549

PE WI vinsnudiesomscisevacunctah penienusdabaulacsaduaeenmisieanimueaaabints 13

Miami Herald Pub‘g Co. v. Tornillo, 418 U.S. 241

CF i icnichsesiacaiaiassnmniceniaatnahamasacuancapiithaindsiaiicaatdaata 15, 16

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).......... 14

Mitchell v.-~Griffin Television, L.L.C., 2002 OK CIV

ig eT passim

Moorhead v. First Piedmont Bank & Trust Co., 256

Se Ie GG TEE ine detisinensaiitinphiindianmeninerbancnalanadiene 19

NAACP v. Claiborne Hardware Co., 458 U.S. 886

9 __. SRNR ea aemelee teeta ne Pee PURO ROOTES eR, UNITES 16

National Socialist Party v. Skokie, 432 U.S. 43

ERO H iiiicss nvseseiisaiisiestasbaiicabaneal aeaaeecenataniacinarecuaieedoeacanaaacibadaeda al 16

New York Times v. Sullivan, 376 U.S. 254 (1964)....... 13, 18

Powell v. State, 1995 OK CR 37, 906 P.2d 765.................. 19

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

Ei csisi:ciecituhaiseitisisichsladennwieesmmosinalonanaiereuaedaniaaeaamuanel 10

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62

St. Amant v. Thompson, 390 U.S. 727 (1968)...............0006 23

Time, Inc. v. Pape, 401 U.S. 279 (1971)...............2. 26, 28, 29

a

Vv

TABLE OF AUTHORITIES -— Continued

Page

WJLA-TV v. Levin, 564 S.E.2d 383 (Va. 2002)...........-00+ 23

Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714

(10th Cir, 2000) .............ssccsscsccssssssccrrceressserececsecsscessscecnss 12

STATUTES

QB U.S.C. § 125 7a) ......ccccccsrrroccocrsesenerscssensesveccsooooovsoreses 9,10

Judiciary Act of 1789, § 25, 1 Stat. 85 ........ceseseeeeeeeerees 9

RULES

U.S. Sup. Ct. Rule 14........cccecssesseeseneeeeesteeeeeeeeseenneseneeenes 27

U.S. Sup. Ct. Rule 14(1)(g)(i) ....eeeecccseeseeseereseeeeseeeeeennenneens 27

OTHER AUTHORITIES

Robert L. Stern, SUPREME COURT PRACTICE, § 3.7 .........++: 10

TABLE OF APPENDICES

Page

Appendix A — Opinion of the Court of Civil Appeals

of the State of Oklahoma, Division

III, dated September 6, 2002............ App. 1

Appendix C — Order of the Supreme Court of the

State of Oklahoma striking Reply

Brief of Appellants and accepting

Corrected Brief, dated June 27,

EE stnchtinammberantiaaieenbaae App. 26

Appendix D— Reply Brief of Appellants (Cor-

rected), dated June 20, 2002............. App. 27

ee a e

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Petitioners ask this Court to grant certiorari to review

three questions concerning the Oklahoma Court of Civil

Appeals’ actual malice determination, asserting that these

issues are dispositive of this case. Petitioners are simply

wrong. In a private figure defamation action such as this,

proof of actual malice is necessary only to permit an award

of presumed or punitive damages. The Oklahoma Court of

Appeals has already held, however, on state law grounds,

that presumed damages are not permitted in this case,

and it is unclear whether the jury’s relatively modest

i award of punitive damages will be reinstated or vacated

on remand. Thus the questions proposed by Petitioners are

not only not dispositive of this litigation, they are largely

moot. For these and other reasons discussed below, the

Petition for a Writ of Certiorari should be denied.

AEE Bie RaW he Abd

STATEMENT OF THE CASE

In 1998, Petitioners Chris Halsne (“Halsne”) and

Griffin Television, L.L.C. (“KWTV”), published a series of

seven television broadcasts regarding Respondent Howard

L. Mitchell (“Mitchell”), a Bristow, Oklahoma, veterinar-

ian. The facts surrounding these broadcasts were estab-

lished below and are as follows:’

Satire VIA) Bin ED 0

* KWTV’s Petition sets forth numerous facts which contradict the

factual findings made (implicitly) by the jury and (explicitly) by the

Oklahoma Court of Civil Appeals. This Court has indicated, however,

that regardless of the heightened standard of review for the question of

actual malice, the jury’s underlying credibility assessments and factual

determinations are still subject to a clearly-erroneous standard of

review. See, infra pp. 22-23. Petitioners have at no point alleged or

demonstrated that the factual determinations of the jury or the Court of

(Continued on following page)

2

KWTV’s first series of broadcasts regarding Mitchell

concerned his treatment of a halter horse named This

Lady Sings. Mitchell testified that he examined This Lady

Sings at the AQHA World Championships because she was

“a little tender on her right front foot” and found that she

had twisted her shoe. Mitchell v. Griffin Television, L.L.C.,

2002 OK CIV APP 115, ¥ 9, 60 P.3d 1058.’ Mitchell told the

trainer that the horse needed a farrier. When the trainer

was unable to locate a farrier that night, Mitchell testified

that he gave the horse a “minute amount” of a natural

blocking agent called Sarapin, which wears off in 24 to 36

hours, to relieve her discomfort. Jd. This Lady Sings was

sold after the show, and subsequently her purchasers sued

the sellers in federal court, alleging that the horse was

unsound at the time of sale and that her trainer had

deliberately concealed the horse’s lame condition. Jd. at

q 10.

KWTV ran several broadcasts describing Mitchell’s

role in this dispute and the transcripts of these broadcasts

are reproduced in the Appendix to Petitioners’ brief. In the

lead-in to the first story, which aired on January 26, 1998,

KWTV announced that MHalsne was _ investigating

“[ajJllegations of cheating and drug use at the World

Quarter Horse Championships.” PETITIONERS’ APP. at 35a.

In his report, Halsne described This Lady Sings as a

Civil Appeals are clearly erroneous. Therefore, the appellate court’s

recitation of facts should govern this Court’s analysis.

* The official opinion of the Oklahoma Court of Civil Appeals, as

filed with the clerk of the Oklahoma Court of Civil Appeals and as

reported on the Oklahoma Supreme Court website and in the official

reporter, contains numbered paragraphs. The copy of the opinion

included in Petitioners’ Appendix omits the paragraph numbers. An

official copy of the opinion is therefore included in Respondent’s

Appendix at App. 1-22.

Pe RE

PDS AD) 0 EO BE OR

3

“casualty” of the “big money” quarter horse industry. Id. at

36a. Halsne then stated that “[tJhere is a dark secret to

this horse’s injury . . one the American Quarter Horse

Association has under investigation. This Lady Sings was

hobbling before the World Championships . . and was

given a painkiller.” Jd. at 36a-37a. Halsne then stated that

Mitchell “put a chemical called Sarapin in [the mare’s] foot

to mask the pain.” Id. at 37a (emphasis added). Clearly,

the suggestion was that Mitchell intended the Sarapin to

conceal the horse’s pain from others, not to relieve the

horse’s discomfort. Because Halsne tied Mitchell’s admini-

stration of the pain killer to allegations of “cheating,” he

further sent viewers the message that Mitchell was

deliberately injecting the horse with a drug, not for medi-

cal purposes, but to give it an unfair advantage in the

competition.

At the close of the first broadcast, Halsne indicated

that he would present a report the next night about a

lawsuit relating to the horse’s injury, and promised

“(t]here is a lot more to this story.” Id. at 38a. On January

27, 1998, KWTV promoted this story by stating that its

investigative team was “dig{ging] deeper into allegations

that a top show horse was drugged during the World

Quarter Horse Championships.” Jd. at 39a (emphasis

added). Another promotional tape featured an announcer

stating, “An Oklahoma vet linked in a federal lawsuit to

masking the injuries of a champion show horse.” Jd. at

40a.

During that broadcast, Halsne reported that “[t]he

federal case says Mitchell knew that This Lady Sings was

hobbling before the world show. Afterwards, he examined

the horse for a new buyer and didn’t disclose the mare’s

previous injury.” Id. at 42a. KWTV then inserted a sound-

bite of Mitchell stating, “I don’t know if I should be talking

ITNT NT AE MN LA

4

on television about this.” Jd. at 42a. This broadcast delib-

erately conveyed to viewers that Mitchell was the alleged

wrongdoer in the federal lawsuit and that he had some-

thing to hide. Any doubt that this was the message KWTV

intended to convey was erased one week later when a

KWTV anchor stated plainly that, “[a] federal lawsuit

accuses the vet of doping up an amateur world champion

quarter horse.” Jd. at 45a.

At trial, Halsne testified that he was familiar with the

complaint filed in the federal lawsuit and had it in his

possession prior to airing the story. Mitchell, 2002 OK CIV

APP 115, 7 11. As the jury and Court of Appeals found,

however, the role of Mitchell in the federal lawsuit com-

plaint bore little resemblance to Halsne’s description. The

complaint did not allege that Mitchell knew the horse was

hobbling before the show. Jd. at 9 12. While the complaint

accused the trainer of acting with the purpose of disguis-

ing, or masking, the horse’s lame condition, it did not

allege Mitchell acted with that purpose. Jd. Nor did the

complaint accuse Mitchell of concealing the horse’s condi-

tion when he conducted the pre-purchase exam; rather it

alleged the horse’s condition was concealed from Mitchell

by the silicone pads in the mare’s hoof. Jd. Halsne’s state-

ments thus did not truly and fairly report the allegations

in the complaint. Id. at 7 13.

As it was running these stories, KWTV received a

“tip” about Mitchell, relating to a horse named Doo

Dominate and proceedings with the New Mexico State

Racing Commission (“NMSRC”) seven years earlier.

Mitchell treated Doo Dominate prior to the 1994 All

American Futurity race at Ruidoso Downs in New Mexico.°

* Mitchell treated Doo Dominate for septic arthritis in his foreleg

from August 3lst to September 3rd, prior to the September 5, 1994,

(Continued on following page)

ee EE nat ee

5

Id. at J 14. During the race, the horse stumbled and broke

both front legs. Jd. Track veterinarians euthanized the

horse, took blood and urine samples, and removed the

front legs for necropsy. Jd. Two other horses broke down

and were euthanized that day.‘ Id.

Wayne Conwell, the Medication Manager for the

NMSRC investigated Doo Dominate’s breakdown. Id. at

q 15. Conwell sent the samples for testing and the legs for

necropsy. Id. The necropsy of Doo Dominate revealed

chronic arthritis in the front legs (which the reviewing

veterinarian found serious enough to render the horse

unfit for racing), as well as hairline fractures. Id. While

the original urine sample tested positive for traces of

mepivacaine, a pain-killer that was prohibited at that

time,’ a second test at an independent lab failed to confirm

the presence of this drug. Id.

The NMSRC issued a Notice of Contemplated Com-

mission Action against Mitchell, charging him with prac-

ticing veterinary medicine in New Mexico without a

license’ and with assisting Doo Dominate’s owner and

race. Mitchell never administer ¢ mepivacaine or any other painkiller

to the horse.

‘ The attending veterinarian for Doo Dominate testified during the

NMSRC investigation that there had been many complaints about holes

on the race track causing horses to break down.

* Under a subsequent amendment to the NMSRC rules, a small

amount of mepivacaine is not prohibited because it was found to have

no impact on performance. Id. at q 15 n.3.

* Mitchell was practicing under the supervision of a New Mexico

veterinarian, which is permitted under New Mexico’s general rules of

veterinary practice. Mitchell was unaware, however, the general rules

of veterinary practice do not apply on New Mexico racetracks, which are

under the jurisdiction of the NMSRC. NMSRC rules do not permit

supervised practice by out-of-state veterinarians on New Mexico

racetracks.

6

trainer in running an unfit horse. Jd. at 4 16. It did not

charge Mitchell with giving the horse mepivacaine. Id.

After a hearing, the NMSRC issued an order finding

Mitchell practiced veterinary medicine without a license,

and revoked his owner’s license. Jd. The NMSRC order

specifically concluded the evidence was insufficient to

prove Mitchell assisted the owner and trainer in running

an unfit horse. Jd. The NMSRC brought a separate action

against the owner and trainer of Doo Dominate for the use

of mepivacaine, but dismissed the charges because the

results of the independent laboratory did not confirm the

presence of mepivacaine in Doo Dominate’s urine sample.

Id. at J 17. '

Halsne obtained and was familiar with the NMSRC

Notice and Final Order before airing his reports. Jd. at

q 18. Nevertheless, on February 4 and 5, 1998, KWTV

repeatedly aired a promotional tape promising viewers

that “[y]ou’ll be appalled by what racing officials say this

vet has done.” Jd. at 4 19. In the 5:00 p.m. newscast on

February 5th, a KWTV anchor promised that KWTV

would show “[a] connection between the death of a high-

priced race horse. . and the alleged doping of a champion

quarter horse.” PETITIONERS’ APP. at 44a. In the 10:00 p.m.

newscast, a KWTV anchor introduced Halsne’s story,

stating, “Not only is [Mitchell] accused in a federal lawsuit

of giving a world-class quarter horse painkillers before a

show here, he’s also suspected of killing one of the coun-

trys top racehorses.... Lead investigator Chris Halsne

has discovered that Dr. Mitchell has a troublesome

past....” Jd. at 46a.

Halsne told viewers that the This Lady Sings incident

“isn’t the first time Mitchell has been in trouble for his

veterinary practices.” Id. at 46a. Halsne described Doo

Dominate’s breakdown and reported that the NMSRC had

concluded after an “extensive investigation” that “Doo

ee ee ene een ee ee

7

Dominate competed doped up and with a broken knee.” Id.

at 47a. Following a sound-bite from Conwell, stating that

Doo Dominate was unfit to race, Halsne reported that

Mitchell “had been illegally working on the colt prior to

the race.” Id. at 47a. This broadcast sent viewers the

message that the NMSRC had concluded that Mitchell

was responsible for doping and killing this horse.’ KWTV’s

broadcast was thus not a true and fair report of the

NMSERC proceeding. Mitchell, 2002 OK CIV APP 115, { 21.

At the close of evidence at trial, the District Court

instructed the jury on the causes of action brought by

Mitchell against Halsne and KWTV. In its opening in-

struction, the Court informed the jury that:

Dr. Mitchell claims that the stories were false

and defamatory and that the stories caused in-

jury to himself and to his business. He alleges

that Defendants were negligent in broadcasting

the stories. Dr. Mitchell further alleges that the

publication was a deliberate or reckless falsity.

PETITIONERS’ APP. at 62a-63a (emphasis added). In its

subsequent instruction on the elements of the defamation

claim, the District Court instructed the jury that Mitchell

was required to prove that the Defendants were negligent

or acted in reckless disregard with respect to the truth of

7 Subsequent news broadcasts compounded the previous misrepre-

sentations that Mitchell had been accused by either a federal lawsuit or

_ the NMSRC of doping a horse. For example, a March 26, 1998, broad-

cast was introduced with the statement that KWTV had “showed how

Mitchell was connected to the doping of a world-class racehorse and a

world champion show horse.” Id. at 50a. In a June 17, 1998, story,

KWTV referred to Mitchell as “[aln Oklahoma veterinarian, accused of

doping-up some of this country’s top show and race horses. ... ” Jd. at

53a. KWTV was aware, however, neither the federal lawsuit nor the

NMSRC ever accused Mitchell of “doping-up” a horse. Mitchell, 2002

OK CIV APP 115, { 20.

8

the statements broadcast. RESP.’S APP. at 23-24. The jury

was further instructed that if they found by clear and

convincing evidence that the Defendants acted in reckless

disregard with respect to the truth of the statements

broadcast, then they were permitted to award Mitchell

general and punitive damages. RESP.’S APP. at 24-25.

Following deliberations, the jury returned a verdict in

favor of Mitchell on both the defamation and the false

light claims. PETITIONERS’ APP. at 3la. The jury found that

the dollar amount of Mitchell’s actual damages was

$6,000,000. Id. The jury specially found that KWTV and

Halsne had acted in reckless disregard of the truth of the

statements published about Mitchell. Jd. at 32a. The jury

also awarded Mitchell $250,000 in punitive damages from

each defendant.

On appeal, the Oklahoma Court of Civil Appeals

affirmed the jurys verdict as to liability, finding the

evidence sufficient to establish reckless disregard of the

truth by Halsne and KWTV. Mitchell, 2002 OK CIV APP

115, J 22. The Court further found the evidence of malice

to be sufficient to justify the award of Category II punitive

damages under Oklahoma law. Id. at | 38. The Court of

Appeals found, however, that the jury lad erroneously

been instructed that it could award presumed general

damages without proof of harm because an Oklahoma

statute prohibits such an award where the defamatory

statements are published as part of a television broadcast.

Id. at J 28.° The Court of Appeals thus remanded the case

* Contrary to the suggestion at pages 18 and 19 of Petitioners’

Brief, the Court of Appeals did not find that Mitchell failed to prove

attual damages; the Court merely found that the jury instructions

would have permitted an award of presumed damages and that such an

award would violate state law. Mitchell in fact presented significant

(Continued on following page)

9

for a new trial as to the issue of compensatory damages

alone. Id. at 41. The Court of Civil Appeals indicated

that if the jury failed to award Mitchell any compensatory

damages on remand, the award of punitive damages was

to be vacated as a matter of state law. Id. at { 39.

ARGUMENT AND AUTHORITIES

I. THIS COURT LACKS JURISDICTION TO

REVIEW THE ORDER OF THE OKLAHOMA

COURT OF CIVIL APPEALS BECAUSE IT IS

NOT A “FINAL JUDGMENT” UNDER 28 U.S.C.

§ 1257(a).

From the earliest days of the federal judiciary, Con-

gress has vested in the United States Supreme Court the

authority to review federal-question decisions made by

state courts. Jefferson v. City of Tarrant, 522 U.S. 75, 81

(1997). For just as long, however, Congress has limited

this Court’s review of state court decisions to “[flinal

judgments or decrees rendered by the highest court of a

State in which a decision could be had....” 28 U.S.C.

§ 1257(a); see also Judiciary Act of 1789, § 25, 1 Stat. 85.

This Court has thus recognized that 28 U.S.C. § 1257(a)

“establishes a firm final judgment rule.” Jefferson, 522

U.S. at 81. Under this rule, “[t]o be reviewable by this

Court, a state-court judgment must be final ‘in two senses:

it must be subject to no further review or correction in any

other state tribunal; it must also be final as an effective

determination of the litigation and not of merely interlocu-

tory or intermediate steps therein. It must be the final

word of a final court.’” Id. (quoting Market Street Ry. Co. v.

Railroad Comm’n of Cal., 324 U.S. 548, 551 (1945)).

evidence of actual harm, including evidence of his own emotional

distress and the decline of his business.

10

A. The judgment of the Court of Civil Ap-

peals is not final under § 1257 because

there are further proceedings to occur at

the trial court level.

This Court has repeatedly stressed that “the finality

rule ‘is not one of those technicalities to be easily scorned.

It is an important factor in the smooth working of our

federal system.’” Jd. (quoting Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120 (1945)). Therefore, before the Court

will review a state court determination, it must be clear

that definitive disposition has been made of all the legal

and factual issues in the case. As this Court has observed,

“the requirement of finality has not been met merely

because the major issues in a case have been decided and

only a few loose ends remain to be tied up — for example,

where liability has been determined and all that needs to

be adjudicated is the amount of damages.” Republic

Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 (1948).

In the instant case, the order of the Oklahoma Court

of Civil Appeals is not a “final judgment” within the

meaning of § 1257(a) because it does not render a defini-

tive disposition of all the legal and factual issues in this

case. While the order determines the issue of liability, the

Court of Appeals has remanded the case to the District

Court for a new trial as to compensatory damages. Be-

cause significant further proceedings are thus contem-

plated in this action, the requirement of finality is not

met. Republic Natural Gas, 334 U.S. at 68; see also Robert

L. Stern et al., SUPREME COURT PRACTICE, § 3.7 at 150 (the

fact that a case will involve further proceedings on remand

“provides a strong basis for finding the state court judg-

ment nonfinal and thus nonreviewable at this juncture”).

11

B. This case does not fall within the fourth

exception to the finality rule articulated

in Cox Broadcasting.

Despite the lack of technical finality, Petitioners

contend that this case should be treated as final under the

fourth exception to the finality rule outlined in Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469, 477-483 (1975). This

exception recognizes finality within the meaning of

§ 1257(a) where three distinct conditions are present: (1)

“the federal issue has been finally decided in the state

courts with further proceedings pending in which the

party seeking review here might prevail on the merits on

non-federal grounds, thus rendering unnecessary review of

the federal issue by this Court”; and (2) “reversal of the

state court on the federal issue would be preclusive of any

further litigation on the relevant cause of action”; and (3)

“a refusal immediately to review the state court decision

might seriously erode federal policy.” Id. at 482-83. Be-

cause, as shown below, this case does not satisfy the

second and third conditions set forth above, this Court

lacks jurisdiction to hear Petitioners’ claims. Moreover,

because the proceedings remaining on remand are likely to

raise additional federal questions, Cox Broadcasting

suggests that review of any properly presented federal

questions should await the conclusion of the proceedings

on remand. Id. at 477.

1. Areversal of the Court of Civil Appeals

on the existence of actual malice

would not preclude the further pro-

ceedings contemplated below.

To fall within the fourth exception to the finality rule

articulated by this Court in Cox Broadcasting, the Court

must satisfy itself that “reversal of the state court on the

federal issue would be preclusive of any further litigation

12

on the relevant cause of action... .” Jd. at 482-83. Peti-

tioners thus argue that “were this Court to conclude that,

under the appropriate standard of independent review, the

evidence presented at trial did not clearly and convinc-

ingly demonstrate actual malice, the reversal of the

decision of the Court of Civil Appeals would preclude

further litigation.” PETITIONERS’ BR. at 19. This contention

is simply not true. To the contrary, no determination by

this Court of the questions presented would prevent the

Court of Civil Appeals from remanding this case for a new

trial as to compensatory damages on both the defamation

and false light claims.

First, it is conceded by Petitioners that Mitchell is a

private figure. Therefore, while Mitchell’s claim for false

light invasion of privacy requires a showing of reckless

disregard as a matter of state law, this standard is not

mandated by the federal constitution. Colbert v. World

Pub’g Co., 1987 OK 116, 747 P.2d 286, 291-92.° The Okla-

homa Court of Civil Appeals has determined that the

evidence was sufficient to establish reckless disregard as a

matter of Oklahoma law, Mitchell, 2002 OK CIV APP 115,

47 13 & 22, and the Oklahoma Supreme Court declined

* In Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714 (10th Cir.

2000), a case involving a false light claim brought by a private figure

plaintiff against a media defendant, the Tenth Circuit rejected the

plaintiff’s argument that the Oklahoma Supreme Court would no

longer apply the Colbert recklessness standard and would instead

follow other states that have permitted recovery under a negligence

theory in false light media cases involving private individuals. The

Court found that the plaintiff “has cited no authority subsequent to

Colbert that justifies [his] prediction that the Oklahoma Supreme Court

would retreat from the Colbert requirements.” Jd. at 720. This language

clearly indicates that the recklessness standard is a matter of Okla-

homa state law and is not constitutionally mandated in false light

media cases involving private plaintiffs, such as the instant case.

13

to review this determination. Because this is purely a

question of state law, this Court does not have jurisdiction

to review the Oklahoma courts’ actions. Accordingly, even

if this Court were to find the evidence presented insuffi-

cient to establish actual malice as a matter of federal

constitutional law, this would not preclude further pro-

ceedings on Mitchell’s false light claim.

Second, the District Court properly instructed the jury

that, for Mitchell to recover on his defamation claim, he

was required to prove that the Defendants either were

negligent or acted in reckless disregard with respect to the

truth of the statements broadcast. RESP.’S APP. at 23-24.

While Mitchell could expand the relief available by show-

ing the greater culpability, such a showing was not neces-

sary to sustain liability. Mitchell, 2002 OK CIV APP 115,

q 6; Martin v. Griffin Television, Inc., 1976 OK 13, 549

P.2d 85.

The jury in this case made a special finding that there

was clear and convincing evidence Petitioners acted in

reckless disregard of the truth of the statements pub-

lished. PETITIONERS’ APP. at 32a. The Court of Appeals

affirmed, finding “clear and convincing evidence from

which the jury could find he made the statements with

reckless disregard as to their falsity.” Mitchell, 2002 OK

CIV APP 115, 9 13. The Court of Appeals also found that

because Mitchell proved malice, he did not need to prove

negligence. Id. This is, of course, because the lesser degree

of culpability is subsumed within the greater degree of

culpability — every time a reporter publishes a story “with

knowledge that it was false or with reckless disregard of

whether it was false or not,” New York Times v. Sullivan,

376 U.S. 254 (1964), that reporter has failed to exercise

ordinary care.

V4

Because the determination by the jury and Court of

Appeals that there was clear and convincing evidence of

reckless disregard would necessarily encompass a finding

of negligence (a lesser standard of culpability with a lesser

standard of proof), whatever ruling this Court might make

on the question of actual malice would not affect Petition-

ers’ liability on the defamation claim.” It would only affect

the availability of presumed damages. However, in this

case, the Oklahoma Court of Civil Appeals has already

held that presumed damages are not permitted on state

law grounds. Therefore, a reversal of the Court of Appeals

on the question of actual malice will not affect the ques-

tion of liability or the availability of presumed damages.

Whatever this Court’s holding, this case will return to the

District Court for a new trial on the issue of compensatory

damages, with presumed damages not permitted.

The only issue as to which the existence of actual

malice could have any relevance whatsoever is Mitchell’s

request for punitive damages. This Court has held that

States may not permit recovery of punitive damages in

defamation actions in the absence of actual malice, at least

in actions involving matters of public concern. Gertz v.

Robert Welch, Inc., 418 U.S. 323, 349 (1974); Dun &

" While the question of the existence of negligence is apparently

also subject to heightened review on appeal, Milkovich v. Lorain

Journal Co., 497 U.S. 1, 20-21 (1990), for the reasons discussed in

Sections III and IV, ante, the Oklahoma Court of Civil Appeals con-

ducted a constitutionally-adequate review of the record and found

evidence sufficient to establish a level of culpability beyond (and

subsuming) negligence. The existence or non-existence of expert

testimony as to Petitioners’ negligence is irrelevant. Contrary to

Petitioners’ suggestion, under Oklahoma law, there is no requirement

that expert testimony be offered to establish negligence, although this

will normally be the case. Malson v. Palmer Broadcasting Group, 1997

OK 42, 936 P.2d 940, 941.

a a Pee

15

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749

(1985). As the Court of Appeals indicated, however, its

affirmance of the award of punitive damages in this case

was conditioned upon the jury awarding Mitchell actual

damages on retrial. Therefore, at this point, there is no

way to know whether an award of punitive damages will

be made in this case. Given this uncertainty — and given

the fact that the award or non-award of punitive damages

will be purely ministerial and will not involve the expendi-

ture of any time, effort or money on behalf of the parties —

it would appear more advisable to await an actual award

of punitive damages before deciding this question.

2. A refusal immediately to review the

Court of Civil Appeals’ decision will

not seriously erode federal policy.

For a case to fall within the fourth Cox Broadcasting

exception, it must also be established that “a refusal

immediately to review the state court decision might

seriously erode federal policy.” Cox Broadcasting, 420 U.S.

at 483.” In the instant case, no federal policy is in danger

of erosion if KWTV is forced to retry damages and then

appeal all resulting federal issues at that time. This

Court’s orders do not leave in place any statute or injunc-

tion which is operating as a prior restraint on the press

" While this element is virtually unaddressed by Petitioners, cases

from this Court establish that it is an essential condition. Thus, where

this Court has found that delaying review until after trial would be

intolerable, this Court has treated the State court decision as final. See,

e.g., Cox Broadcasting, 420 U.S. at 485-86; Miami Herald Pub’g Co. v.

Tornillo, 418 U.S. 241, 247 n.6 (1974). Where this Court has found no

federal policy at risk of erosion, however, this Court has declined to

consider the state court decision “final.” See, e.g., Florida v. Thomas,

532 U.S. 774, 780 (2001); Flynt v. Ohio, 451 U.S. 619, 621 (1981).

16

during the pendency of the lower court proceedings as

appears to be the case in virtually every First Amendment

action reviewed by the Supreme Court under an exception

to the finality rule. See, e.g., NAACP v. Claiborne Hard-

ware Co., 458 U.S. 886 (1982) (injunction prohibited

enforcement of boycott of white-owned businesses); Cox

Broadcasting, 420 U.S. at 485-86 (statute prohibited

media from publishing name of rape victim); National

Socialist Party v. Skokie, 432 U.S. 43 (1977) (injunction

prohibited petitioners from marching or parading); Miami

Herald Pub’g Co. v. Tornillo, 418 U.S. 241 (1974) (statute

required newspaper to carry candidate’s reply to editorial).

3. The retrial on the issue of damages is

likely to raise additional federal is-

sues.

This Court has further observed that in “most, if not

all, of the cases in [the four Cox Broadcasting] categories,

these additional proceedings would not require the deci-

sion of other federal questions that might also require

review by the Court at a later date. .. .” Cox Broadcasting,

420 U.S. at 477. Thus consideration of the federal ques-

tions raised in such cases prior to their conclusion would

run no risk of subjecting the courts or the parties to “‘the

inconvenience and costs of piecemeal review.’” Id. at 478

n.7 (quoting Dickinson v. Petroleum Conversion Corp., 338

U.S. 507, 511 (1950)).

In this case, however, there is a strong probability

that additional federal questions will be raised by the

jury’ award of compensatory damages on remand. For

example, in their brief before the Oklahoma Court of Civil

Appeals, Halsne and KWTV argued that the award of

compensatory damages by the jury in this case was

“grossly excessive” and thus violated the First and Four-

teenth Amendments to the U.S. Constitution. If a second

17

jury were to award a similar or larger sum to Mitchell,

Halsne and KWTV would likely reiterate their federal

constitutional challenge to that award. Additionally, the

Court of Civil Appeals has held that, if the jury awards

any compensatory damages to Mitchell, the full award of

punitive damages will stand. Mitchell, 2002 OK CIV APP

115, 9 39. In the unlikely event that the jury on retrial

were to award only nominal damages to Mitchell, one

could anticipate that Petitioners might challenge the

award of $500,000 in punitive damages under the Four-

teenth Amendment and BMW of North America v. Gore,

517 U.S. 559 (1996).

4. Conclusion.

As the foregoing demonstrates, this case does not fall

under the fourth exception to the finality rule articulated

by this Court in Cox Broadcasting. The Oklahoma Court of

Civil Appeals’ decision did not terminate the instant

litigation. Nor would a reversal by this Court on the

federal question terminate the instant litigation. Rather,

regardless of how this Court might determine any of the

properly-presented federal issues, this case will return to

the District Court for a new trial as to compensatory

damages on both the defamation and false light claims,

with presumed damages not permitted.

II. REVIEW OF THE PRIMARY QUESTION

PRESENTED IS UNNECESSARY BECAUSE

THE RECORD DEMONSTRATES THAT THE

OKLAHOMA COURT OF CIVIL APPEALS AP-

PLIED THE PROPER STANDARD OF RE-

VIEW TO THE QUESTION OF ACTUAL

MALICE.

The Supreme Court has instructed that “[j]udges, as

expositors of the Constitution, must independently decide

18

whether the evidence in the record is sufficient to cross the

constitutional threshold that bars the entry of any judg-

ment that is not supported by clear and convincing proof of

‘actual malice.’” Bose Corp. v. Consumers Union of United

States, 466 U.S. 485, 511 (1984). In conducting this inde-

pendent review “it is not actually necessary to review the

‘entire’ record to fulfill the function of independent appel-

late review on the actual-malice question; rather, only

those portions of the record which relate to the actual-

malice determination must be independently assessed.” Id.

at 514 n.31. It must be apparent that the reviewing court

has “examine[d] for [itself] the statements in issue and the

circumstances under which they were made” to see

whether they are “of a character which the principles of

the First Amendment ... protect.” Harte-Hanks Commu-

nications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)

(quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285

(1964)).

Here, the Court of Civil Appeals acted precisely as

directed by this Court. First, the Court of Civil Appeals

noted that the element of actual malice is subject to a

heightened clear-and-convincing standard of proof, and

that this is the only element subject to this standard.

Mitchell, 2002 OK CIV APP 115, 4 8. As shown below,

the Court of Civil Appeals then conducted a thorough,

independent review of the portions of the record that

relate to the actual-malice question and concluded that

there was clear and convincing evidence that KWTV

broadcast defamatory statements about Mitchell with

reckless disregard for their truth or falsity.” There is thus

* Even if the Court of Appeals’ correct general statement that a

jury verdict must be affirmed if there is “any competent evidence

reasonably tending to support it,” could — taken in isolation — suggest

that an insufficient standard of review was applied to the question of

(Continued on following page)

19

no manner in which the Court of Appeals’ opinion failed to

comport with the standard of review articulated by the

Supreme Court in Bose and Harte-Hanks.

In this case, the portions of the record that relate to

the actual-malice determination consist of the KWTV

broadcasts, Halsne’s testimony, Mitchell’s testimony, the

federal complaint, and the NMSRC file. That the Court of

Appeals independently reviewed the defamatory broad-

casts in their entirety is evident from the fact that the

Court of Appeals quotes various statements made in the

broadcasts which were not quoted by either party in the

appellate briefing. See Mitchell, 2002 OK CIV APP 115,

7{ 11 (first quoted passage), 19 (first sentence), & 20 (first

quoted sentence). That the Court of Appeals independently

reviewed Halsne’s testimony in its entirety is evident from

the fact that the Court of Appeals quotes statements by

Halsne describing his review of the NMSRC file which

were not quoted by either party in the appellate briefing.

See id. at | 18 (second indented passage). That the Court

of Appeals independently reviewed Mitchell’s testimony in

its entirety is evident from the fact that the Court of

actual malice, where an appellate court’s opinion as a whole demon-

strates that the proper analysis was conducted, it matters not that

statements read in isolation might suggest an improper standard.

Harte-Hanks, 491 U.S. at 667-68; see also Powell v. State, 1995 OK

CR 37, 13, 906 P.2d 765, 784 (Order Granting Rehearing) (upholding

sentence despite fact that Court’s original opinion articulated an

improper standard of review, stating “[w]e have reviewed the opinion

and find that [the correct] standard was employed by this Court”)

(emphasis added); Moorhead v. First Piedmont Bank & Trust Co., 256

S.E.2d 414, 416 (S.C. 1979) (affirming trial court decision where,

through apparent inadvertence, the trial court recited the incorrect

standard of review); Bill Parker & Assocs. v. Rahr, 456 S.E.2d 221, 223

(Ga. App. 1995) (affirming trial court decision where trial court

apparently misstated relevant burden of proof).

20

Appeals quotes testimony from Mitchell which was not

quoted by the parties in the appellate briefing. See id. at

7 9 (fifth sentence). That the Court of Appeals independ-

ently reviewed the complaint in the federal lawsuit is

evident from the fact that the Court of Appeals sets forth

the allegations of the complaint in far greater length than

did either party in the appellate briefing. See id. at | 10

(indented passages). Indeed, the Court of Appeals re-

viewed the complaint so closely that it even found a

discrepancy between the allegations in the complaint and

the KWTV broadcasts that was not raised by Mitchell. See

id. at 412 (noting that complaint alleged the horse’s

condition was concealed from Mitchell by silicone pads on

the horse’s hoof). Finally, that the Court of Appeals con-

ducted an independent review of the NMSRC file is

evident from the fact that the Court of Appeals refers to

details of an NMSRC rule that were not cited by either

party in the appellate briefing. See id. at J 15 n.3 (noting

that mepivacaine was prohibited within 72 hours of race).

After conducting its thorough review of the record, the

Court of Appeals held that there was clear and convincing

evidence of actual malice in this case. As to the stories

about This Lady Sings, the Court of Appeals recited the

various discrepancies between the allegations described by

Halsne in his broadcasts and the allegations actually

contained in the federal lawsuit. As the Court of Appeals

stated, “Halsne’s own admission he was familiar with the

complaint is clear and convincing evidence from which the

jury could find he made the statements with reckless

disregard as to their falsity.” Id. at J 13.”

* In Curtis Pub’g Co. v. Butts, 388 U.S. 130, 139 (1967), the

Supreme Court affirmed the jury verdict for the plaintiff where the trial

judge had similarly described his review of the jury verdict as follows:

(Continued on following page)

21

The Court of Appeals also found the jury’s verdict to

be supported by the evidence relating to the news stories

about Doo Dominate. Id. at J 14. Based on the unambigu-

ous public documents of the NMSRC, the Court of Appeals

found that independent laboratory testing had failed to

confirm the presence of the mepivacaine in Doo Dominate.

Id. at | 15. The NMSRC Notice of Contemplated Action

did not charge Mitchell with giving Doo Dominate mepiva-

caine. Id. at { 16. The NMSRC brought a separate action

against the owner and trainer of Doo Dominate for the use

of mepivacaine, but this action was dismissed because,

under NMSRC rules, there was no positive drug test. Id.

at 9 17. These documents all indicated that the NMSRC

had concluded that Doo Dominate was not “doped” prior to

the All American Futurity and that the NMSRC had never

accused Mitchell of doping the horse. Halsne admitted to

reviewing these documents before airing his reports.“ Id.

at J 18.

After reviewing the various KWTV broadcasts, the

Court of Appeals found, “[t]his record presents sufficient

evidence from which the jury could find Halsne falsely

reported the NMSRC found Doo Dominate raced doped-up

and Mitchell was linked to the doping. There is evidence

that Halsne knew the statement was false or acted with

reckless disregard of whether it was false or not.” Id. at

{ 21 (emphasis added). This statement, coupled with its

“there was ample evidence from which a jury could have concluded that

there was reckless disregard by defendant of whether the article was

false or not.”

“ Petitioners’ arguments that they should not be forced to investi-

gate the truth of the broadcasts are undermined by the fact that Halsne

already possessed and was familiar with the unambiguous public

documents establishing the falsity of his broadcasts. There was thus no

need to investigate.

22

earlier recognition that such evidence was reviewed to

satisfy a clear and convincing standard, clearly represents

the Court of Appeals’ independent conclusion that the

record in this case contained clear and convincing evidence

of actual malice. The review conducted by the Court of

Appeals thus comports with the standards enunciated by

this Court in Bose and Harte-Hanks, and review of this

case is not necessary.

Ill. REVIEW IS UNNECESSARY BECAUSE THE

COURT OF CIVIL APPEALS PROPERLY

CONCLUDED THAT THE RECORD CON-

TAINS CLEAR AND CONVINCING EVIDENCE

OF ACTUAL MALICE.

Petitioners’ primary claim regarding the sufficiency of

the evidence is that the appellate court reviewed the

entire record only to determine whether there was evi-

dence which supported the jury’s verdict, rather than

weighing all the evidence to determine whether, on bal-

ance, it supported the Defendants’ case. Even if this were

true, decisions from this Court and others indicate that

review of the record in a light favorable to the party who

prevailed before the jury does not fail to satisfy the consti-

tutionally-mandated independent review.

This Court has indicated that in conducting the

constitutionally-required independent review, a reviewing

court must still accept the jury’ underlying credibility

assessments and factual determinations unless they are

clearly erroneous. Harte-Hanks Communications, 491 U.S.

at 688. Further, this Court has maintained that the

requirement of independent review preserves the “due

regard” that is ordinarily given to the trial judge’s oppor-

tunity to observe the demeanor of witnesses. Bose, 466

U.S. at 499-500. This Court also noted that “[t]he inde-

pendent review function is not equivalent to a ‘de novo’

23

review of the ultimate judgment itself, in which a review-

ing court makes an original appraisal of all the evidence to

decide whether or not it believes that judgment should be

entered for plaintiff.” Jd. at 514 n.31.

Apart from the finding of actual malice, to which the

rule of independent review applies, therefore, the other

findings of fact in a defamation case are properly tested

under the clearly erroneous standard of review. Id.; see

also Brown v. Petrolite Corp., 965 F.2d 38, 46 (5th Cir.

1992). Thus state courts have concluded that their task is

to “determine what evidence the jury reasonably accepted

as credible, and whether this evidence clearly and convinc-

ingly establishes actual malice.” Beal v. Bangor Pub’g Co.,

714 A.2d 805, 808 (Me. 1998); see also WJLA-TV v. Levin,

564 S.E.2d 383, 392 (Va. 2002) (where jury has found by

clear and convincing evidence that defendant published

statements with actual malice, reviewing court in conduct-

ing its independent review of the record “must view that

record in a light favorable to the plaintiff”).

In this case, the record contains an abundance of

objective evidence supporting the jury’s conclusion that,

despite his claims to the contrary, Halsne entertained

serious doubts as to the truth of his stories about Mitchell,

and that his failure to investigate was a deliberate deci-

sion not to acquire knowledge of facts that might confirm

the probable falsity of Conwell’s story.” While it is

’* While the standard of actual malice is a subjective one, this does

not mean that the trier of fact is limited to the defendant’s own version

of what was in his mind at the time of publication. St. Amant uv.

Thompson, 390 U.S. 727, 731 (1968) (“[p]rofessions of good faith” do not

insulate a defendant from liability). Rather, “[t]he subjective determi-

nation of whether [a defendant] in fact entertained serious doubts as to

the truth of the statement may be proved by inference, as it would be

(Continued on following page)

24

unnecessary to detail all such evidence, the jury could

have based its finding of actual malice, for example, on the

following.

Halsne’s reports regarding This Lady Sings purport to

describe the allegations made in a federal lawsuit. Halsne

had a copy of this lawsuit and was familiar with it. Halsne

and KWTV repeatedly reported that Mitchell had been

“accused” in the lawsuit of “doping” or “drugging” This

Lady Sings in order to mask her injuries and fraudulently

induce a third party to purchase the injured horse. The

lawsuit, however, on its face contained no such allegations.

Additionally, prior to airing any reports regarding Doo

Dominate, Halsne obtained a copy of the NMSRC’s final

order in the Mitchell matter. This order indicated that

Mitchell had been disciplined for practicing veterinary

medicine on the grounds of a New Mexico racetrack

without the appropriate license. It also demonstrated on

its face that Mitchell had been cleared of charges that he

had assisted the owner and trainer of Doo Dominate in

running an unsound horse.

After familiarizing himself with this report, Halsne

traveled to New Mexico to meet with Conwell. His sole

meeting with Conwell consisted of a 12 or 13 minute

interview, during which Conwell allegedly told him that

rare for a defendant to admit such doubts... .” Bose Corp. v. Consum-

ers Union of United States, 692 F.2d 189, 196 (1st Cir. 1982), aff’d, 466

U.S. 485 (1984); see also Beal v. Bangor Pub’g Co., 714 A.2d 805, 807

(Me. 1998) (“Rare is the instance in which a defendant journalist

admits to publishing a defamatory article with either knowledge of, or

reckless disregard to, the statement’s falsity... .”). A failure to investi-

gate may provide circumstantial evidence from which one may infer

that the defendant entertained doubts as to the truth of the statements

published. See, e.g., Harte-Hanks Communications, Inc. v. Connaugh-

ton, 491 U.S. 657 (1989).

25

Mitchell “doped” and “helped to kill” Doo Dominate.

Immediately after this interview, the NMSRC made the

entire investigative file regarding Doo Dominate available

to Halsne and his camera man. Despite his awareness that

the NMSRC notice of proposed action and final order both

contradicted Conwell’s story, Halsne decided not to take

advantage of this opportunity to review the investigative

file to evaluate the truth of Conwell’s statements. Instead,

Halsne just picked out a few documents which supported

Conwell’s story, virtually all of which were authored by

Conwell himself. Halsne deliberately ignored documents

that would have cast doubt on Conwell’s story. Thus, when

asked whether he was aware that there was a negative

drug test on Doo Dominate after the original positive,

Halsne responded that “our interest was the positive drug

test... .” Halsne also testified that he was not interested

in knowing the outcome of the drugging charges against

the owner and trainer of Doo Dominate because he “was

more interested in Dr. Mitchell’s connection” to the horse.

Halsne’s only attempt at justifying his disregard of the

file unraveled spectacularly before the jury when he was

caught in a flagrant falsehood, and his elaborate explana-

tion was exposed as pure invention. Halsne repeatedly told

the jury that a full review of the file was unnecessary

because Conwell had walked him through the documents,

and that this guidance had ensured that he reviewed and

understood the crucial documents. Both Defendants’

expert witness and the owner of KWTV told the jury that

such guidance would be absolutely necessary, given the

technical nature of the documents. Halsne even told the

jury that it was Conwell’s ability to point out crucial

documents that confirmed his credibility, stating, “I think

we trusted his judgment, especially when he backed it up

with documents. .. .” Conwell, however, flatly denied that

he had shown Halsne any documents or that he had even

been in the building when Halsne was reviewing them.

26

When told that Halsne had so testified, Conwell reiterated

“T did not go through the documents with Mr. Halsne.”

Where the jury heard Halsne, his expert, and his

employer emphasize that Conwell’s assistance was crucial

to understanding the investigative file; and where the jury

heard Halsne testify repeatedly that he received such

assistance; and where Conwell unequivocally denied that

he provided such assistance; the jury was entitled — if not

compelled — to conclude that Halsne wholly fabricated the

investigation he had testified was essential.”

IV. PETITIONERS HAVE NOT PRESERVED THE

QUESTION OF WHETHER ACTUAL MALICE

MAY BE PREMISED ON A DEFENDANT’S

RATIONAL INTERPRETATION OF AN AM-

BIGUOUS PUBLIC DOCUMENT.

Petitioners have asked this Court to consider the

question “[w]hether, in a defamation and false light

invasion of privacy case, the First and Fourteenth

Amendments, as interpreted by Time, Inc. v. Pape, 401

U.S. 279 (1971), permit a finding of actual malice solely on

the basis that the appellate court’s interpretation of an

ambiguous public document differs from the rational

** Not only did Halsne invent a controversy, he also ignored clear

warnings of the essential dishonesty of his crusade, another classic

indicium of malice. KWTV and Halsne received two letters from an

attorney for Mitchell warning them that the Doo Dominate story was

false. Halsne took no additional action to verify the story after receiving

these warnings, other than to obtain a copy of the full investigative file,

which sat unread on his desk. Nevertheless, after receiving the

attorney's initial letter, KWTV broadcast five more stories about

Mitchell based solely on Conwell’s allegations. Under such circum-

stances, the jury was entitled to find that Halsne’s bare assertion of a

lack of malice was unpersuasive and grossly outweighed by other, more

objective evidence.

27

interpretation given the document by the broadcaster. . . .”

PETITIONERS’ BR. at i. As required by Supreme Court Rule

‘14(1)(g)(i), Petitioners represent that they raised this issue

before the Court of Civil Appeals, and refer this Court to

the relevant portion of their reply brief submitted to the

appellate court.” Petitioners then state, without further

explanation, that “[t]he Court of Civil Appeals did not

discuss the issue in its opinion.” PETITIONERS’ BR. at 29

n.24,

It would appear, however, that the reason the Court of

Civil Appeals did not discuss this issue is that Petitioners

had not preserved it for appellate review. It is axiomatic

that, as a matter of Oklahoma law, “a party will not be

permitted to raise issues on appeal which were not raised

in the trial court.” Continental Nat. Gas, Inc. v. Midcoast

Nat. Gas, Inc., 1996 OK CIV APP 157, 935 P.2d 1185, 1189.

It appears that Petitioners never raised the “rational

interpretation of an ambiguous public document” issue

before the District Court in this matter. Indeed, while

Supreme Court Rule 14 requires that Petitioners specify

“the stage in the proceedings, both in the court of first

instance and in the appellate courts, when the federal

questions sought to be reviewed were raised,” U.S. Sup. Ct.

Rule 14(1)(g)(i) (emphasis added), Petitioners make no

claim that this issue was raised before the District Court.

Because this issue was thus not preserved for appellate

review, and the Court of Civil Appeals accordingly

" Petitioners’ reference to this brief fails to satisfy Rule 14,

however, because the brief was stricken from the record by the Okla-

homa Supreme Court for violating that court’s length requirements.

RESP.’S APP. at 26. Petitioners subsequently filed a corrected reply brief

on June 20, 2002, which was accepted by the Court. Id. The corrected

reply brief omits some of the text appearing in Petitioners’ Appendix.

RESP.’S APP. at 27-29.

28

refrained from addressing it, Petitioners may not now

raise the issue in this Court.

Even if this Court were to address the impact of Time,

Inc. v. Pape, 401 U.S. 279 (1971), on this litigation, how-

ever, such consideration would not aid Petitioners’ case. In

Time, a libel action was brought by a police officer against

a magazine based on an article which described a report

issued by the United States Commission on Civil Rights.

The magazine reported as a charge by the Commission

what was really a description by the Commission of the

allegations in a complaint filed in a civil rights action. Id.

at 284-85. The sole issue on appeal was whether the

omission of the word “alleged” in reference to Commis-

sion’s description of the complaint showed actual malice.

Id. at 283. This Court ultimately found that, when the

magazine failed to state that the Commission in reporting

the incident had confined itself to the allegations of a

complaint, its conduct was insufficient to sustain a jury

finding of actual malice.

In reaching this conclusion, however, the Court noted

that:

A press report of what someone has said

about an underlying event of news value can con-

tain an almost infinite variety of shadings.

Where the source of the news makes bald asser.

tions of fact — such as that a policeman has ar-

rested a certain man on a criminal charge — there

may be no difficulty. But where the source itself

has engaged in qualifying the information re-

leased, complexities ramify.

Id. at 286. What makes Time inapplicable to the instant

case is that the reporter in Time was in the latter situa-

tion; reporting on an ambiguous secondary source’s de-

scription of an incident. Halsne, however, was in a

situation much more akin to the former described above;

29

that is, he was reporting on an incident based on unambi-

guous primary sources (i.e., the federal court complaint

and the NMSRC notice of proposed action and final order).

Halsne tries to put himself into the latter category by

claiming that his interview with Conwell added ambiguity

to his understanding of the events in New Mexico. How-

ever, where Halsne was in possession of and familiar with

an unambiguous primary source, Time does not stand for

the proposition that he can use a secondary source like

Conwell to create an illusion of ambiguity where none

exists.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

CLYDE A. MUCHMORE

Counsel of Record

Maky H. TOLBERT

CROWE & DUNLEVY

20 North Broadway, Suite 1800

Oklahoma City, Oklahoma

73102-8273

(405) 235-7734

and

DOUGLAS E. STALL

LATHAM, STALL, WAGNER,

STEELE & LEHMAN

Boulder Towers

1437 South Boulder, Suite 820

Tulsa, Oklahoma 74119

(918) 382-7523

Counsel for Respondent

App. 1

APPENDIX A

THIS OPINION HAS BEEN RELEASED FOR

PUBLICATION BY ORDER OF THE

COURT OF CIVIL APPEALS

IN THE COURT OF CIVIL APPEALS

OF THE STATE OF OKLAHOMA

DIVISION III

H.L. MITCHELL,

Plaintiff/Appellee,

vs. Case No. 96,640

)

)

)

)

GRIFFIN TELEVISION, L.L.C., ?

an Oklahoma corporation, and )

CHRIS HALSNE, an individual,

)

Defendants/Appellants.

APPEAL FROM THE DISTRICT COURT OF

CREEK COUNTY, OKLAHOMA

HONORABLE JOE SAM VASSAR, TRIAL JUDGE

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED

(Filed Sep. 6, 2002)

Douglas E. Stall,

David Von Hartitzsch,

LATHAM, STALL, WAGNER,

STEELE, & LEHMAN,

Tulsa, Oklahoma,

Clyde A. Muchmore,

Mary Hirth Tolbert,

CROWE & DUNLEVY,

Oklahoma City, Oklahoma, For Plaintiff/Appellee,

App. 2

Robert D. Nelon,

Jon Epstein,

Susanna G. Voegeli,

HALL, ESTILL, HARDWICK, GABLE,

GOLDEN & NELSON,

Oklahoma City, Oklahoma, For Defendants/Appellants.

OPINION BY CAROL M. HANSEN, Presiding Judge:

41 Defendant/Appellants, Griffin Television, L.L.C.

(Griffin) and Chris Halsne (collectively KWTV), seek

review of the trial court’s judgment based on a jury verdict

in favor of Plaintiff/Appellee, H.L. Mitchell. We affirm as

to the finding of liability and award of punitive damages,

reverse as to compensatory damages, and remand for new

trial as to compensatory damages.

92 Mitchell is a veterinarian in Bristow, Oklahoma.

Between January 27, 1998, and September 13, 1998,

KWTV broadcast seven stories dealing with Mitchell’s

treatment of a halter horse named This Lady Sings at the

1997 World Quarter Horse Championships in Oklahoma

City and the death of a quarter horse named Doo Domi-

nate at the All American Futurity in New Mexico on

September 5, 1994. Mitchell sued KWTV for defamation

and false light invasion of privacy arising from the stories.

43 A jury trial took place in June 2001. At the close of

evidence, KWTV moved for a directed verdict. The trial

court denied the motion and submitted the case to the

jury. The jury specially found Griffin and Halsne acted in

reckless disregard of the truth of the statements published

and intentionally and with malice concerning Mitchell. It

awarded $6,000,000.00 in actual damages against Griffin

and Halsne, $250,000.00 in punitive damages against

Griffin, and $250,000.00 in punitive damages against

a an i ld

App. 3

Halsne. The trial court granted judgment for the verdict

amount, as well as $1,323,950.00 in prejudgment interest

and $5,010.02 in costs, for a total judgment amount of

$7,828,960.02. KWTV appeals from that judgment.

I

74 One group of KWTV’s contentions raises the issue of

whether there was sufficient evidence for the jury to hold

KWTYV liable to Mitchell. KWTV argues the trial court

should have directed a verdict in its favor because Mitchell

(1) failed to present evidence from which a jury could

reasonably conclude any of the statements about which he

complained is substantially false, (2) presented no evi-

dence of special damages to support a defamation per quod

claim, (3) failed to submit expert testimony that KWTV

departed from the standard of care to which reasonable

journalists ordinarily adhere under similar circumstances,

(4) failed to present clear and convincing evidence of

actual malice, and (5) put on no evidence any harm to his

reputation was caused by false statements rather than

true ones. Because the last contention relates to damages,

we will address it in Part II below.

75 In order to recover for defamation, a private figure

must prove (1) a false and defamatory statement, (2) an

unprivileged publication to a third party, (3) fault amount-

ing at least to negligence on the part of the publisher; and

(4) either the actionability of the statement irrespective of

special damage, or the existence of special damage caused

by the publication. Sturgeon v. Retherford Publications,

Inc., 1999 OK CIV APP 78, 987 P2d 1218, 1223. If the

publication is a fair and true report of a proceeding au-

thorized by law or anything said in the proceeding, it is

App. 4

privileged. 12 O.S.1991 §1443.1(A). Negligence is the

failure to exercise ordinary care, which is “that degree of

care which ordinarily prudent persons engaged in the

same kind of business usually exercise under similar

circumstances.” Martin v. Griffin Television, Inc., 1976 OK

13, 549 P.2d 85, 92. Slander is actionable per se, without a

showing of actual damage, if it falls within the first four

sections of 12 O.S.1991 § 1442. Standifer v. Val Gene

Management Services, Inc., 1974 OK CIV APP 41, 527 P.2d

28, 31.

46 While negligence is the minimum level of fault neces-

sary for a private figure to recover for slander, the plaintiff

may expand the relief available by showing greater culpa-

bility on the defendant’s part. Upon a showing of actual

malice, the plaintiff may recover punitive damages, and,

where otherwise allowed, presumed damages.” Martin v.

* 12 0.S.1991 § 1442 provides,

Slander is a false and unprivileged publication, other than libel,

which:

1. Charges any person with crime, or with having

been indicted, convicted or punished for crime.

2. Imputes in him the present existence of an infec-

tious, contagious or loathsome disease.

3. Tends directly to injure him in respect to his office,

profession, trade or business, either by imputing to him

general disqualification in those respects which the office or

other occupation peculiarly requires, or by imputing some-

thing with reference to his office, profession, trade or busi-

ness that has a natural tendency to lessen its profit.

4. Imputes to him impotence or want of chastity; or,

5. Which, by natural consequences, causes actual

damage.

* See Part II below for a discussion of presumed damages.

App. 5

Griffin Television, Inc., 1976 OK 13, 549 P2d 85, 93.

“Actual malice” means “with knowledge that it was false

or with reckless disregard of whether it was false or not.”

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

84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). Proof of malice

obviates the need to prove negligence.

17 In order to recover for false light invasion of privacy,

the plaintiff must show (1) the defendant gave publicity to

a matter concerning the plaintiff that placed the plaintiff

before the public in a false light, (2) the false light in

which the plaintiff was placed would be highly offensive to

a reasonable person, and (3) the defendant had knowledge

of or acted in reckless disregard as to the falsity of the

publicized matter and the false light in which the other

would be placed. McCormack v. Oklahoma Pub. Co., 1980

OK 98, 613 P.2d 737, 740.

78 In reviewing a judgment based on a jury verdict, we

may not disturb the jury’s verdict where there is any

competent evidence reasonably tending to support it. The

jury is the exclusive arbiter of the credibility of the wit-

nesses, and its verdict is conclusive as to all disputed facts

and all conflicting statements. We must determine the

sufficiency of the evidence to sustain a judgment in light of

the evidence tending to support it, together with every

reasonable inference deducible therefrom, rejecting all

evidence adduced by the adverse party which conflicts

with it. Florafax Intern., Inc. v. GTE Market Resources,

Inc., 1997 OK 7, 933 P.2d 282, 287. As to the element of

malice, the evidence must be sufficient for a trier of fact to

find or infer its existence subject to a clear and convincing

standard of proof. Herbert v. Oklahoma Christian Coali-

tion, 1999 OK 90, 992 P.2d 322, 328. This standard applies

to both public officials and private figures. Gaylord

ARE

App. 6

Entertainment Co. v. Thompson, 1998 OK 30, 958 P.2d

128, 141 n. 46. However, it does not apply to any element

other than malice.

979 The news stories of which Mitchell complains began

with reports relating to This Lady Sings. Mitchell testified

he examined the horse soon after she was unloaded at the

fairgrounds before the horse show. He said she was “a

little tender on her right front foot” and had twisted her

shoe. He testified he told the trainer the horse needed a

farrier. Mitchell said the trainer was unable to find a

farrier that evening and was worried the horse would “fret

all night and gan up and lose weight and quit drinking.”

Mitchell said he wrapped her foot, but could see she was

not very comfortable on it, so he “did a Sarapin posterior

digital heel block on her” with “three-quarters of a cc” of

Sarapin, which was “a minute amount.” He said Sarapin is

called a natural block in holistic circles and wears off in 24

to 36 hours. Mitchell testified This Lady Sings was not

hobbling when he saw her.

410 This Lady Sings was sold after the show. On Janu-

ary 21, 1998, her purchaser sued the sellers and trainer in

federal district court for rescission of the contract and

damages for breach of warranty and fraud in the induce-

ment of the contract. The complaint alleged as follows:

12. That on November 15, 1997, Skoda [the

purchaser] had the mare inspected by Dr.

Mitchell, a veterinarian on the grounds of the

show, who conducted a prepurchase exam of the

horse and represented to Skoda, and his insurer,

that the horse was sound.

i App. 7

16. That the mare was then presented to the

previous examining veterinarian, which [sic]

found some bruising on the hoof wall, apparently

related to improper shoeing and that silicone had

been placed under the pad of the mare’s left hoof;

the silicone pads prevented a clear view of the

sole at the time of the original purchase exami-

nation.

19. That Skoda conducted a further investiga-

tion into the unsoundness of the mare and later

on November 22, 1997, learned from Dr. Mitchell

that prior to the Amateur Division Showing, he

had “blocked” one of Casper’s adult horses

scheduled to appear in the Amateur Division

showing; said block being a veterinary technique

to numb pain, so that the horse will not present

outward manifestation of pain, or unsound gate.

20. That Casper had only one adult horse to be

presented and [sic] the said showing, to wit;

“This Lady Sings”.

21. That Casper knew that the mare was un-

sound at the time of the negotiations with Skoda

and had undertaken specific overt acts to dis-

guise the lame condition.

{11 In the January 26, 1998 10:00 p.m. news broadcast,

Halsne reported,

This Lady Sings was named best-amateur-in-the-

world just three months ago. Now, her new

trainer ... says lameness in her front feet have

[sic] ended the horse’s career. . . .

There is a dark secret to this horse’s injury. . One

the American Quarter Horse Association has

App. 8

under investigation. This Lady Sings was hob-

bling before the World Championships. . and was

given a painkiller. ...

What [Mitchell] did was put a chemical called

Sarapin in her foot to mask the pain.

Prior to the next evening’s broadcast, KWTV ran a promo-

tional tape in which the announcer stated, “An Oklahoma

vet linked in a federal lawsuit to masking the injuries of a

champion show horse.” In the 10:00 p.m. broadcast,

Halsne reported,

The federal case says Mitchell knew that This

Lady Sings was hobbling before the world show.

Afterwards, he examined the horse for a new

buyer and didn’t disclose the mare’s previous in-

jury....

Dr. Mitchell claims the horse was badly shod

when it came to the world championships, and he

simply treated a bruise. The new buyer says the

horse’s health condition is chronic.

At trial, Halsne testified he was familiar with the com-

plaint and had it in his possession prior to airing the story.

412 The complaint in the federal suit did not say

Mitchell knew the horse was hobbling before the horse

show. While it did accuse the trainer of acting with the

purpose of disguising, or masking, the horse’s lame condi-

tion, it did not allege Mitchell acted with that purpose. It

alleged Mitchell told the buyer he blocked the horse. It

alleged the block is a veterinary technique to numb pain,

so that the horse will not appear unsound, but it did not

allege Mitchell intended it for the purpose of masking the

horse’s unsoundness. The complaint did not accuse

Mitchell of concealing the horse’s condition when he did

App. 9

the prepurchase exam; rather it alleged the horse’s condi-

tion was concealed from Mitchell by the silicone pad on the

mare’s left hoof.

{13 Halsne’s statements do not truly and fairly report

the allegations in the complaint. Therefore, his publication

is not privileged pursuant to 12 O.S.1991 § 1443.1(A). The

complaint itself, when compared with Halsne’s statements,

is evidence from which the jury could find Halsne made

false and defamatory statements to third parties about

Mitchell and that the statements tended to injure Mitchell

in his profession. Halsne’s own admission he was familiar

with the complaint is clear and convincing evidence from

which the jury could find he made the statements with

reckless disregard as to their falsity. Because Mitchell put

on evidence of malice, he did not need to prove negligence.

The statements were defamatory per se and not per quod;

therefore, Mitchell did not need to prove special damages

in order to establish liability for slander pursuant to 12

O.S.1991 § 1442(3). This same evidence would support a

finding by the jury of each of the elements of a false light

invasion of privacy claim.

14 The jury's verdict is also supported by the evidence

relating to the news stories about Doo Dominate. Mitchell

treated Doo Dominate prior to the 1994 All American

Futurity race at Ruidoso Downs racetrack in New Mexico.

During the race, the horse stumbled and broke both front

legs. Track veterinarians euthanized the horse, took blood

and urine samples, and removed his front legs for ne-

cropsy. Two other horses broke down and were euthanized

that day.

App. 10

9415 Wayne Conwell, the Medication Manager for the

New Mexico State Racing Commission (NMSRC), investi-

gated Doo Dominate’s breakdown. He sent the samples for

testing and the legs for necropsy. The necropsy report

concluded,

This horse had chronic severe carpal joint dis-

ease affecting the left carpus. There were chronic

and acute fractures of the radial carpal bone and

the 3rd carpal bone in the left carpus.

In summary, the chronic carpal joint disease in

the left carpus appeared severe enough to make

this horse unfit for racing. Acute left carpal

breakdown may have been responsible for the

acute fracture of the cannon bone in the opposite

leg.

The laboratory to which Conwell sent the urine sample

reported the sample tested positive for mepivacaine, a

prohibited pain-killer.* The horse’s owner exercised his

right to send a split sample to an independent laboratory.

That laboratory’s results failed to confirm the presence of

mepivacaine.

416 The NMSRC issued a Notice of Contemplated

Commission Action against Mitchell, charging him with

practicing veterinary medicine in New Mexico without a

license and with assisting Doo Dominate’s owner and

trainer in running an unfit horse. It did not charge him

* At the time of the 1994 race, mepivacaine was prohibited within |

72 hours of race day. However, the NMSRC later amended its rules to

allow a threshold amount of the drug.

serena

App. 11

with giving the horse mepivacaine. After a hearing, the

NMSRC issued an order finding Mitchell practiced veteri-

nary medicine at Ruidoso Downs without holding a license

issued by the New Mexico Board of Veterinary Examiners.

It permanently revoked his owner’s license.‘ However, the

order specifically concluded the evidence was insufficient

to prove Mitchell assisted the owner and trainer in run-

ning an unfit horse.

417 The NMSRC brought a separate action against the

owner and trainer for the use of mepivacaine. It later

dismissed those charges because the results of the inde-

pendent laboratory did not confirm the presence of me-

pivacaine in Doo Dominate’s urine sample.

418 MHalsne said he looked at these documents before

airing his report. He testified,

We were looking for specific documents that sup-

port the allegations in front of us about Dr.

Mitchell[,] about Doo Dominate. . . . [W]e couldn’t

read every word of those documents and didn’t.

We were looking for key pieces that would sup-

port our story and maybe shed some light on

some areas that didn’t support our story... .

[W]e had already done a couple of stories about

Dr. Mitchell, and so when we went down we

wanted to — I mean our concentration was on

ties in [sic] Dr. Mitchell and the death of Doo

* The owner’s license permitted Mitchell access to the track as a

horse owner.

App. 12

Dominate and how close those ties were and

what they were.

419 On February 4 and 5, 1998, KWTV repeatedly aired

a promotional tape stating, “You'll be appalled by what

racing officials say this vet has done.” In the 10:00 p.m.

newscast on February 5, 1998, the anchor introduced

Halsne’s story, stating,

[AJn Oklahoma veterinarian is the target of a

News Nine investigation tonight. Not only is he

accused in a federal lawsuit of giving a world-

class quarter horse painkillers before a show

here, he’s also suspected of killing one of the

countrys top racehorses.... Lead investigator,

Chris Halsne has discovered that Dr. Mitchell

has a troublesome past... .

420 Halsne then reported,

[T]his incident isn’t the first time Mitchell has

been in trouble for his veterinary practices.

Doo Dominate bolted out of Gate 9 during the

1994 All-American Futurity at Ruidoso Downs.

One hundred yards from the finish, the powerful

colt stumbled, broke both legs, and had to be

euthanized. The New Mexico Racing Commission

conducted an extensive investigation. An exam

afterward showed Doo Dominate competed doped

up and with a broken knee.

On March 26, 1998, the anchor introduced another story

about Mitchell, stating, “A few months ago a News Nine

investigation showed how Mitchell was connected to the

doping of a world-class racehorse and a world champion

show horse.” Halsne then reported on the rescission of

Mitchell’s Oklahoma racing license.

App. 13

{21 This record presents sufficient evidence from which

the jury could find Halsne falsely reported the NMSRC

found Doo Dominate raced doped-up and Mitchell was

linked to the doping. There is evidence Halsne knew the

statement was false or acted with reckless disregard of

whether it was false or not. A reasonable jury could find

the statement injured Mitchell’s professional reputation.

The statement was not a true and fair report of the

NMSRC proceeding and therefore is not privileged pursu-

ant to 12 0.S.1991 § 1443.1(A).

722 Accordingly, we hold there was sufficient evidence

for the jury to hold KWTV was liable to Mitchell for

slander and false light invasion of privacy.

II

{23 Another group of KWTV’s contentions of error relate

to the compensatory damages award. KWTV argues (1) the

trial court erred in instructing on presumed damages, (2)

Okiahoma law does not permit presumed damages in a

defamation case against the media even when actual

malice is shown, (3) presumed damages can only be

nominal, (4) the compensatory damages awarded bear no

rational relationship to the demonstrated harm and are so

excessive as to shock the conscience, and, as noted in Part

I above, (5) Mitchell put on no evidence any harm to his

reputation was caused by false statements rather than

true ones.

724 In New York Times Co. v. Sullivan, 376 U.S. 254, 84

S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Su-

preme Court established the rule requiring proof of actual

malice in order for public officials to recover for defama-

tion. It later extended the rule to public figures in Curtis

App. 14

Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18

L.Ed.2d 1094 (1967). In Gertz v. Robert Welch, Inc., 418

U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court

considered whether to apply the New York Times standard

to private individuals. It declined to do so, reasoning

states have a greater interest in protecting private indi-

viduals than public figures from defamation because

private individuals have less access to communication

channels to counteract false statements and therefore are

more vulnerable to injury. Jd., 418 U.S. at 344, 94 S.Ct. at

3009. The Court stated,

We hold that, so long as they do not impose li-

ability without fault, the States may define for

themselves the appropriate standard of liability

for a publisher or broadcaster of defamatory

falsehood injurious to a private individual.

However, the Court then balanced the media’s First

Amendment rights against the States’ legitimate interest in

compensating private individuals for injury to reputation:

[TjJhis countervailing state interest extends no

further than compensation for actual injury... .

[W]e hold that the States may not permit recov-

ery of presumed or punitive damages, at least

when liability is not based on a showing of

knowledge of falsity or reckless disregard for the

truth.

418 U.S. at 349, 94 S.Ct. at 3011.°

* The Court further explained its holding:

The common law of defamation is an oddity of tort law,

for it allows recovery of purportedly compensatory damages

(Continued on following page)

App. 15

without evidence of actual loss. Under the traditional rules

pertaining to actions for libel, the existence of injury is pre-

sumed from the fact of publication. Juries may award sub-

stantial sums as compensation for supposed damage to

reputation without any proof that such harm actually oc-

curred. The largely uncontrolled discretion of juries to

award damages where there is no loss unnecessarily com-

pounds the potential of any system of liability for defama-

tory falsehood to inhibit the vigorous exercise of First

Amendment freedoms. . . .

We would not, of course, invalidate state law simply be-

cause we doubt its wisdom, but here we are attempting to

reconcile state law with a competing interest grounded in

the constitutional command of the First Amendment. It is

therefore appropriate to require that state remedies for de-

famatory falsehood reach no farther than is necessary to

protect the legitimate interest involved. It is necessary to

restrict defamation plaintiffs who do not prove knowledge of

falsity or reckless disregard for the truth to compensation

for actual injury. We need not define ‘actual injury,’ as trial

courts have wide experience in framing appropriate jury in-

structions in tort actions. Suffice it to say that actual injury

is not limited to out-of-pocket loss. Indeed, the more cus-

tomary types of actual harm inflicted by defamatory false-

hood include impairment of reputation and standing in the

community, personal humiliation, and mental anguish and

suffering. Of course, juries must be limited by appropriate

instructions, and all awards must be supported by compe-

tent evidence concerning the injury, although there need be

no evidence which assigns an actual dollar value to the in-

jury.

We also find no justification for allowing awards of

punitive damages against publishers and broadcasters held

liable under state-defined standards of liability for

defamation.... Like the doctrine of presumed damages,

jury discretion to award punitive damages unnecessarily

exacerbates the danger of media self-censorship, but, unlike

the former rule, punitive damages are wholly irrelevant to

the state interest that justifies a negligence standard for

private defamation actions.... In short, the private

(Continued on following page)

App. 16

425 The Oklahoma Supreme Court addressed the appli-

cation of Gertz to then-existing Oklahoma law in Martin v.

Griffin Television, Inc., 1976 OK 13, 549 P.2d 85. At that

time, Oklahoma statutes allowed a presumption of malice

from the publication of unprivileged, defamatory matter.

The Court held those statutes were unconstitutional under

Gertz because a presumption of malice allows liability

without fault. It then chose negligence as the appropriate

standard of liability for the publisher of a defamatory

falsehood injurious to a private individual in Oklahoma.

9426 The Oklahoma Supreme Court also overruled as

unconstitutional a statutory section requiring a minimum

judgment of one hundred dollars because the statute

required no proof as to that minimum amount. It stated,

“This is a presumed damage not allowed by Gertz without

evidence and a finding of actual malice.” Jd. at 93.

9427 KWTYV argues the statute overruled in Martin was

the only source of presumed damages in Oklahoma, and no

cases following Martin have allowed presumed damages.

As we discussed in Part I, 12 O.S.1991 § 1442 authorizes

actions for slander per se, without a showing of actual

damage, for false and unprivileged publications falling

within the first four sections of the statute. Therefore, the

Legislature contemplated presumed damages for slander

per se. In light of Gertz, though, presumed damages are

only allowed where actual malice is shown.

defamation plaintiff who establishes liability under a less

demanding standard than that stated by New York Times

may recover only such damages as are sufficient to

compensate him for actual injury.

418 US. at 349-350, 94 S.Ct. at 3011-3012.

Sn aa ee

App. 17

728 However, the Legislature has set forth an exception

to the allowance of presumed damages in 12 O.S.1991

§ 1447.3 (emphasis added):

In any action for damages for any defama-

tory statement published in or uttered as a part

of a television and/or radio broadcast, the com-

plaining party shall be allowed such actual

and/or punitive damages as he has alleged and

proved.

This statute is controlling in the instant case. Damages

must be proved, not presumed. The trial court erred in

instructing the jury (1) the law presumes Mitchell suffered

general damages if he showed KWTV acted with malice,

and (2) it may award presumed, general damages without

proof of harm. Therefore, the trial court’s judgment for

compensatory damages is reversed and this matter must

be remanded for new trial as to the issue of compensatory

damages only.° On remand, Mitchell must prove his

damages proximately resulted from the defamatory

statements, but he is not limited to his out-of-pocket loss.

He may recover for loss of profits as well as impairment of

reputation and standing in the community, personal

humiliation, and mental anguish and suffering, subject to

proof. Martin v. Griffin Television, Inc., 549 P.2d at 93.

729 Because we reverse the trial court’s judgment as to

compensatory damages, we need not reach KWTV’s

* A new trial may be granted on the issue of damages only in cases

where it is clear the error in assessing damages did not affect the entire

verdict. Fields v. Volkswagen of America, Inc., 1976 OK 106, 555 P.2d

48, 53.

App. 18

contentions that presumed damages can only be nominal

and the verdict was excessive.

ITI

930 KWTV next contends the trial court erred as a

matter of law in failing to determine certain statements

were not actionable. It argues one group of statements

were not actionable because they were not about Mitchell

or were not defamatory. In its reply brief, KWTV argues

the broadcasts should be viewed as a whole, with the

statements considered in context. The gist of the broad-

casts as a whole is that Mitchell doped horses to conceal

their injuries. The statements in the context of the broad-

casts are about Mitchell and are defamatory.

9431 KWTV argues another group of statements were

privileged pursuant to 12 O.S.1991 § 1443.1. As we dis-

cussed in Part I, KWTV’s statements did not truly and

fairly report legal proceedings. Therefore, its statements

are not privileged.

432 KWTYV argues two of the statements were protected

opinion. These statements were that the death of one

horse was connected to the doping of the other horse and

that Mitchell was connected to the doping of both horses.

The questions of whether the horses were doped and

whether Mitchell was connected to their doping are

sufficiently factual to be susceptible of being proved true

or false. See Milkovich v. Lorain Journal Co., 497 U.S. 1,

21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1 (1990). Therefore,

the statements are not protected opinion.

App. 19

IV

733 KWTV’s next group of contentions relate to jury

instructions. In reviewing jury instructions on appeal, we

must consider the instructions as a whole. The instruc-

tions need not be ideal but must reflect Oklahoma law

regarding the subject at issue. The test for error in in-

structions is whether the jurors were probably misled

regarding the legal standards they should apply to the

evidence. We will not reverse a judgment based on error in

instructing the jury unless it clearly appears the instruc-

tions given or refused caused a miscarriage of justice. King

v. Neal, 2001 OK CIV APP 11, 19 P.3d 899, 902.

734 KWTYV first argues the trial court erred in refusing

to pre-instruct the jury on the elements of Mitchell’s

claims and on the definition of actual malice, thus allow-

ing the jury to be “infected with prejudicial evidence and

argument.” Even if pre-instruction would have been

helpful, the jurors received the necessary instructions

before they began deliberations. We find no error in the

trial court’s action.

735 KWTV next argues the trial court erred in refusing

to give constitutionally adequate instructions because it

refused to give an instruction regarding what is not actual

malice. The jury instructions defining actual malice

correctly state Oklahoma law. We are unable to conclude

the jurors were probably misled regarding the legal

standards they should apply to the evidence.

736 KWTV also argues the trial court inadequately

defined negligence and direct cause. KWTV fails to sup-

port this contention with citations of authority. Accord-

ingly, we will treat it as waived. Messler v. Simmons Gun

Specialties, Inc., 1984 OK 35, 687 P.2d 121, 129 n. 11.

App. 20

437 We addressed the trial court’s error in instructing on

presumed damages in Part II above. KWTV’s next conten-

tion is the trial court erred in refusing to give special

interrogatories to the jury asking which statements it

found to be actionable. The Oklahoma Constitution, Art 7,

§ 15, requires that all jury verdicts be general verdicts.

The trial court has discretion to direct special findings. Id.

We will not reverse a trial court under abuse of discretion

unless it made a clearly erroneous conclusion and judg-

ment, against reason and evidence. Broadwater v. Court-

ney, 1991 OK 39, 809 P.2d 1310, 1312. KWTV has failed to

show any abuse of discretion in the trial court’s refusal to

give special interrogatories.

q 38 KWTV’s last argument regarding jury instructions

is the trial court erred in instructing on Category II

punitive damages because Mitchell failed to show KWTV

acted with malice. As we discussed in Part I, Mitchell put

on evidence from which the jury could find malice. There-

fore, the trial court properly instructed the jury on Cate-

gory II punitive damages pursuant to 23 O.S.Supp.1995

§ 9.1(C).’

” 23 O.S.Supp.1995 § 9.1(C) provides,

Category II. Where the jury finds by clear and convincing

evidence that:

1. The defendant has acted intentionally and with

malice towards others; . .

the jury, in a separate proceeding conducted after the jury

has made such finding and awarded actual damages, may

award exemplary damages in an amount not to exceed the

greatest of:

a. Five Hundred Thousand Dollars ($500,000.00),

(Continued on following page)

eT

App. 21

139 The jury awarded punitive damages of $250,000.00

against each defendant. This award would be within the

statutory limit set forth for Category II punitive damages

regardless of the amount of compensatory damages

awarded on remand. However, should the jury and trial

court find no actual damages on remand, the punitive

damages award must be vacated because § 9.1(C) requires

an award of actual damages before punitive damages may

be awarded. Accordingly, we do not reverse the award of

punitive damages, but instruct the trial court to vacate the

punitive damages award in the event there is no award of

compensatory damages on remand.

Vv

7140 KWTV’s last group of contentions relate to eviden-

tiary rulings. It asserts the trial court made three errors in

admitting Mitchell’s evidence, but fails to show how the

admission of the evidence affected a substantial right. It

argues the trial court improperly excluded testimony from

two of its witnesses, but fails to show how that evidence

would tend to make the existence of a material fact more

or less probable. Therefore, we may not predicate any

reversible error upon the trial court’s evidentiary rulings.

12 O.S.1991 §§ 2104(A), 2401, and 2402.

741 For the foregoing reasons, the judgment of the trial

court is AFFIRMED to the extent it found KWTV liable to

b. twice the amount of actual damages awarded, or

c. the increased financial benefit derived by the defendant

or insurer as a direct result of the conduct causing the in-

jury to the plaintiff and other persons or entities.

App. 22

Mitchell for slander and false light invasion of privacy and

awarded punitive damages. It is REVERSED to the extent

it awarded compensatory damages. This matter is RE-

MANDED for new trial on the issue of compensatory

damages only. The trial court is instructed to vacate the

punitive damages award in the event there is no award of

compensatory damages on remand.

4742 The motion of The Reporters Committee for Freedom

of the Press and others for leave to file an amicus curiae

brief in this appeal was filed after the normal briefing

cycle set for the party to be supported. Because the amici

have failed to show the requisite extraordinary cause for

leave to file their brief, their motion is denied.

743 AFFIRMED IN PART; REVERSED IN PART AND

REMANDED.

ADAMS, J. AND MITCHELL, J.,. CONCUR.

App. 23

APPENDIX B

IN THE DISTRICT COURT OF CREEK COUNTY

STATE OF OKLAHOMA

BRISTOW DIVISION

H.L. MITCHELL, D.V.M.,

an individual,

Plaintiff,

vs.

GRIFFIN TELEVISION,

L.L.C., an Oklahoma

corporation, and CHRIS

HALSNE, an individual,

Defendants.

Case No. CJ-99-16-B

(Judge Joe Sam Vassar)

JURY INSTRUCTIONS

* * *

INSTRUCTION NO. 9

In order for the Plaintiff to recover on his defamation

claim, he must prove by a greater weight of the evidence

each of the following things:

1. That the Defendants published a defamatory

statement or statements about him;

2. That the statement was false and made the

substance of the charge complained of by Plaintiff sub-

stantially false;

3. That the Defendants were negligent or acted in

reckless disregard with respect to the truth of the state-

ment that was broadcast; and

App. 24

4. That the false and defamatory statement directly

caused injury to his reputation.

The parties agree that Defendants published state-

ments about the Plaintiff.

Unless the plaintiff proves all these things, your

verdict must be for the Defendants.

Some of the terms I have used to describe the ele-

ments of the Plaintiffs claim have a specific meaning in

the law, so I will define them for you.

* * *

INSTRUCTION NO. 20

If you find in favor of Plaintiff and that the Defen-

dants (1) knew at the time of the broadcast that a defama-

tory statement about the Plaintiff was in fact false or (2)

had at the time of the broadcast a high degree of aware-

ness of the probable falsity or entertained serious doubts

about the truth of the statements which you find to be

false, then you may award him general damages. These

are those damages that necessarily result from the publi-

cation of defamatory matter and are presumed to exist.

They include but are not limited to, reasonable compensa-

tion for loss of personal or professional reputation, shame,

mortification, and hurt feelings. No definite method of

calculation is prescribed by law by which to fix reasonable

compensation for presumed damages and no evidence of

actual harm is required. In making an award for pre-

sumed damages you should exercise your authority with

calm and reasonable judgment and the damages you fix

shall be just and reasonable.

App. 25

INSTRUCTION NO. 24

If you find that the Defendants defamed and/or caused

Dr. Mitchell to be placed in false light, then you shall

complete verdict form number 1.

If you find that Dr. Mitchell has failed to prove that

the Defendants defamed him and failed to prove that

Defendants placed him in a false light, then you shall

complete verdict form number 2.

If you find in favor of Dr. Mitchell, and grant him

actual damages, then you must also find whether the

Defendants acted with reckless disregard for the truth as

that term has been defined for you.

The Plaintiff has the burden of proving this by clear

and convincing evidence.

If you find by clear and convincing evidence that

either or both of the Defendants acted in reckless disre-

gard for the truth, you may award punitive damages

against such Defendant(s) in a later part of this trial. If

you find that the Defendant(s) did not act in reckless

disregard for the truth, you may not award punitive

damages against the Defendant(s).

App. 26

APPENDIX C

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

Thursday, June 27, 2002

(Filed Jun. 27, 2002)

THE CLERK IS DIRECTED TO ENTER THE FOL-

LOWING ORDERS OF THE COURT:

* * *

96,640 H. L. Mitchell v. Griffin Television, L.L.C. and

Chris Halsne. Corrected reply brief was ac-

cepted June 20, 2002. Brief in violation of

length requirements filed May 20, 2002 is

stricken and replaced by corrected brief.

* * *

/s/ Rudolph Hargrave

CHIEF JUSTICE

App. 27

APPENDIX D

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

H. L. MITCHELL,

Plaintiff/Appellee,

Vv. No. 96,640

GRIFFIN TELEVISION,

L.L.C., an Oklahoma

corporation, and CHRIS

HALSNE, an individual,

Defendants/Appellants.

REPLY BRIEF OF APPELLANTS (CORRECTED)

Appeai from the District Court of Creek County

Honorable Joe Sam Vassar, CJ-99-16-B

Defamation

Robert D. Nelon, OBA #6610

Jon Epstein, OBA #13274

HALL, ESTILL, HARDWICK, GABLE,

GOLDEN & NELSON

100 North Broadway

Bank One Center, Suite 2900

Oklahoma City, OK 73102-8865

Telephone (405) 553-2828

Facsimile (405) 553-2855

ATTORNEYS FOR APPELLANTS

June 20, 2002

App. 28

* * *

I. The plaintiff did not prove actual malice

clearly and convincingly.

Proof of actual malice must be clear and convincing.

Masson v. New Yorker Magazine, 501 U.S. 496, 510 (1991);

New York Times Co. v. Sullivan, 376 U.S. 254, 285-86

(1964); Herbert v. Oklahoma Christian Coalition, Inc.,

1999 OK 90, 74 16, 18; 992 P.2d 322, 328. Whether the

record is sufficient to show actual malice is a question of

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

491 U.S. 657, 685 (1989); Herbert, 1999 OK 90, ¥ 18, 992

P.2d at 328; Gaylord Entertainment Co. v. Thompson,

1998 OK 30, 958 P.2d 128. “[A]n appellate court has an

obligation to ‘make an independent examination of the

whole record’ in order to make sure ‘that the judgment

does not constitute a forbidden intrusion on the field of

free expression.’” Bose Corp. v. Consumers Union, 466

U.S. 485, 499 (1984); Herbert, 1999 OK 90, 7 18, 992 P.2d

at 328. Accord: Harte-Hanks, 491 U.S. at 688 (“[T]he

reviewing court must ‘examine for [itself] the statements

in issue and the circumstances under which they were

made to see ... whether they are of a character which the

principles of the First Amendment ... protect([.]’”) (cita-

tions omitted). Mitchell did not, as a matter of law, prove

actual malice clearly and convincingly.

* * *

KWTYV’s characterization of Mitchell’s role in the

death of Doo Dominate is a rational interpretation of

ambiguous events, and reckless disregard of the truth

cannot be inferred because the publisher proposes an

interpretation of events different from that favored by the

App. 29

plaintiff. Masson v. New Yorker Magazine, Inc., 501 U.S.

496, 519 (1991) (“The protection for rational interpretation

serves First Amendment principles by allowing an author

the interpretive license that is necessary when relying

upon ambiguous sources.”); Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 512 (1984) (no

reckless disregard where report was but “‘one of a number

of possible rational interpretations’ of an event ‘that

bristled with ambiguities’ and descriptive challenges for

the writer.”); Time, Inc. v. Pape, 401 U.S. 279, 290 (1971)

(“The deliberate choice of such an interpretation, though

arguably reflecting a misconception, was not enough to

create a jury issue of ‘malice’ under New York Times.”). See

also Henslee v. Monks, 1977 OK 202, 571 P.2d 440 (in

reporting accusations that police chief had possibly ob-

structed justice by agreeing with ranchers to allow them to

hire illegal aliens, reporter’s failure to understand legal

distinctions between hiring and harboring aliens was not

reckless disregard).