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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 1013

## Text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1233%3A2. Public record. Not legal advice.