Opposition Brief — Helinski v. Rosenberg

} Supra LOU, U.3.

~_ FILED

No. 92-1792 _ 9 1995

THE CliikaA

In THE

Supreme Court of the United States

OCTOBER TERM, 1992

RONALD R. HELINSKI,

Petitioner,

v.

LEON A. ROSENBERG,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of Maryland

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

WILLIAM F. RYAN, JR.

Counsel of Record

HOWARD R. FELDMAN

WHITEFORD, TAYLOR & PRESTON

Seven St. Paul Street

Suite 1400 |

Baltimore, Maryland 21202

(410) 347-8700

Counsel for Respondent

WILSON - Eras PrinTine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

'BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Court of Appeals of Maryland’s applica-

tion of the qualified privilege for out-of-court statements

(made in response to questions by the media) which

fairly and accurately repeated what was said moments

earlier during an in-court, public proceeding raises a fed-

eral question which either can or should be reviewed by

this Court under 28 U.S.C. $ 1257?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED. ...........0....0..0..0...c..0ccccccccccces0.0-

TABLE OF AUTHORITIES .......

i En

STATEMENT OF THE CASB ....W000o0.0o occ.

REASONS FOR DENYING THE WRIT ..............

I.

THE COURT OF APPEALS OF MARYLAND'S

APPLICATION OF THE QUALIFIED PRIVI-

LEGE FOR OUT-OF-COURT STATEMENTS

(MADE IN RESPONSE TO QUESTIONS BY

THE MEDIA) WHICH FAIRLY AND ACCU-

RATELY REPEATED WHAT WAS SAID

MOMENTS EARLIER DURING AN IN-

COURT, PUBLIC PROCEEDING IS NOT A

FEDERAL QUESTION AND DOES NOT

CONFLICT WITH DECISIONS OF THIS

COURT, OTHER STATE COURTS OF LAST

RESORT OR UNITED STATES COURTS

I onsen ccuxennssscivninnnsnnusinnechcevnsengisevencens

A. Absent Restriction On Free Speech Violative

Of The First Amendment, The Law Of Defa-

mation, Including The Recognition And Ap-

plication of Privileges, Is A Matter Of State

B. The Fair Report Privilege, Upon Which The

Judgment Below Is Based, Is A Widely Rec-

ognized Means Of Protecting Fair And Accu-

rate Reports Of Judicial Proceedings And

Does Not Conflict With Decisions Of This

Court, Other State Courts Of Last Resort,

Or United States Courts Of Appeals

Ne ccas onesnansvsvencnsnencstneececovees

iv

TABLE OF AUTHORITIES

Cases Page

Arochem Int'l, Ine. v. Buirkle, 968 F.2d 266 (2d

Cir. 1992) ee ne el . 7

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

(1975) . . 9-10

Craig v. Harney, 331 U.S. 367 (1947) ............... 10

De Ronde v. Gaytime Shops, Inc., 239 F.2d 735

(2d Cir. 1957) 7

Dorsey v. National Enquirer, TIne., 973 F.2d 1431

(9th Cir. 1992) . 7

General Elec. Co. v. Sargent & Lindy, 916 F.2d

1119 (6th Cir. 1999) 7

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) :

Hearst Corp. v. Hughes, 297 Md. 112, 466 A.2d

486 (1983) s 4 7

Johnston v. Cartwright, 355 F.2d 32 (8th Cir.

TSGG) ......, . 7

Landmark Commaimnications, Inc. v. Virginia, 435

oe Lk 5 | | STN MEN EL td cen MEE 10

Laplhoff v. Wilks, 969 F.2d 78 (4th Cir. 1992) 7

Linn v. United Plant Guard Workers Loeal 114,

383 U.S. 53 (1966) ... 7 a. 7

Marchesi v. Franchino, 288 Md. 131, 387 A.2d

1129 (1978) a 8

Mareck v. Johns Hopkins Univ., 60 Md. App. 217,

482 A.2d 17 (1984), cert. denied, 302 Md. 288,

487 A.2d 292 (1985) ...... — = a ireecs g

Nebraska Press Ass'n v. Stuart, 427 U.S. 539

‘tic, | Pee Ee SOE 10

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

(1964) ; ae ee . 8

Nivon v. Warner Commimnications, Ine., 435 U.S.

MD gS BR pee nr ee Sa ee ee 10

Oklahoma Publishing Co. v. District Ct., 420 U.S.

308 (1977) sae <r . ae 10

Ronwin ». Shapiro, 657 F.2d 1071 (9th Cir. 1981) 7

Rosenbloom wv. Metromedia, Inc., 403 U.S. 29

(1971) ; 7

Rushford v. New Yorker Maaazine, Inc., 846 F.2d

249 (4th Cir. 1988) .. cj

v

TABLE OF AUTHORITIES—Continued

Schuster v. U.S. News & World Report, Tne., 602

F.2d 850 (8th Cir. 1979)

Yerkie v. Post-Newsiweek Stations, Mich., Inc., 470

F. Supp. 91 (D. Md. 1979) .............

Statutory Provision:

28 U.S.C. § 1257

Supreme Court Riles:

Rule 19.1

Rule 14

tule 15.1 .. SE rr EE aR Sin Pde eA fase

Treatises:

David A. Elder, The Fair Report Privilege (1988) ..

2 Fowler V. Harper, et al., The Law of Torts (2d

ed. 1986) bas ;

W. Page Keeton, et al., Prosser and Keeton On’ “ve

Law of Torts (5th ed. 1986) Dean

Restatement (Second) of Torts § 611 (1977)

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1792

RONALD R. HELINSKI,

. Petitioner,

LEON A. ROSENBERG,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of Maryland

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondent, Leon A. Rosenberg, respectfully requests

that this Court deny the Petition for Writ of Certiorari.

OPINIONS BELOW

The Opinion of the Court of Appeals of Maryland is

reported at 328 Md. 664, 616 A.2d 866 (1992) and is

reproduced in Petitioner’s Appendix commencing at page

63A. The decision of the Court of Special Appeals of

Maryland is reported at 90 Md. App. 158, 600 A.2d 882

(1992) and is reproduced in Petitioner’s Appendix com-

mencing at page 19A. The decision of the Circuit Court

for Baltimore City, granting summary judgment in favor

of Respondent, is reproduced in Petitioner’s Appendix

commencing at page IA. References to the opinions

below shall be to the appropriate page of Petitioner’s

Appendix and designated as “Pet. App. ‘a

2

JURISDICTION

Contrary to the dictates of Supreme Couri Rule 14,

the Petition for Writ of Certiorari faiis to show the statu-

tory provision believed by Petitioner to confer on_ this

Court jurisdiction to review the judgment in question.

Petitioner presumably invokes jurisdiction under 28 U.S.C.

§$ 1257 because he requests this Court to review the judg-

ment of a state court. As discussed below, §$ 1257 does

not support jurisdiction here because the judgment below

is not based upon the resolution of a federal question but

rather rests upon nonfederal grounds involving the appli-

cation of state common law.

STATUTORY PROVISION

28 U.S.C. § 1257:

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be

had. may be reviewed by the Supreme Court by wiit

of certiorari where the validity of a treaty or statute

of the United States is drawn in question or where

the validity of a statute of any State is drawn in

Guestion on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States,

or where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution or

the treaties or statutes of, or any commission held

or authority exercised under, the United States.

(b) For the purposes of this section, the term

“highest court of a State” includes the District of

Columbia Court of Appeals.

STATEMENT OF THE CASE!

This defamation case arises out of well-publicized child

custody proceedings in the Circuit Court for Baltimore

1 Respondent presents his own Statement of the Case primarily

because he does not believe that Petitioner’s Statement of the Case

fully and accurately reflects the underlying facts and the decision of

the Court of Appeals of Maryland. See Sup. Ct. R. 15.1.

County. Maryland between Jacqueline Helinski (‘Mrs.

Helinski”) and Petitioner Ronald R. Helinski (‘*Peti-

tioner’ or “Mr. Helinski’) regarding Petitioner’s rights

of visitation with their then two-year old daughter. Jackie.

Believing that Jackie had been abused sexually by Mr.

Helinski, Mrs. Helinski opposed Mr. Helinski’s request

for unsupervised visitation. At a hearing on July 26. '

1985, the circuit court entered a judgment of divorce and.

as part of that decree, awarded unsupervised visitation

rights to Mr. Helinski. Mrs. Helinski immediately filed a

motion to amend the visitation provisions of the divorce

decree. When Mrs. Helinski refused to allow Mr. Helin-

ski to have unsupervised visitation with Jackie before

resolution of her motion to amend the July 26 Order,

Mr. Helinski filed a petition to have her held in contempt

for failing to comply with the visitation order. A hearing

was held on August 20, 1985, at which time the court

“in effect. reopened the hearing of July 26 in order to

reconsider the question of visitation, and thereby ad-

dressed for a second time the allegations of sexual abuse

along with the new issue of contempt.” Pet. App. 67A-

68A.

At the August 20 hearing, Mrs. Helinski presented the

estimony of Respondent Leon A. Rosenberg, Ph.D.

(““Respondent” or “Dr. Rosenberg”), a child psychologist

and Director of Psychological Services, Division of Child

Psychiatry at Johns Hopkins University School of Medi-

cine. Jackie’s pediatrician had referred Mrs. Helinski and

Jackie to Dr. Rosenberg in early August 1985 for the

purpose of conducting a psychological evaluation of the

child.

During the August 20 court hearing, Dr. Rosenberg

testified about his findings and conclusions that the child

had undergone a painful and frightening experience in-

volving sexual abuse by her father. Dr. Rosenberg recom-

mended to the court that Mr. Helinski’s visitation rights

be suspended until Mr. Helinski received psychological

4

examination and counscling. The court followed Dr.

Rosenberg’s recommendations. Pet. App. 105A.

News reporters and sketch artists from the print and

electronic media were present during the August 20 hear-

ing. They took notes and drew pictures of Dr. Rosenberg

and otiier participants in the judicial proceeding. Follow-

ing the hearing, Dr. Rosenberg left the courthouse with

the presiding ,udge and both were approached on the

courthouse steps by the reporters covering the judicial

proceeding. The judge told the reporters that he could

not speak adout the cnild custody case, but told them

that Dr. Rosenberg could answer their questions. Re-

sponding to questions by a television reporter, Dr. Rosen-

berg made three statements which, as determined by the

Court of Appeals of Maryland, “accurately and fairly

recounted the substance of his testimony in court.” Pet.

App. 114A. These statements were interspersed by the

television news station throughout a news story of the

hearing broadcast during that evening’s newscasts. As

pointed out by the Court of Appeals of Maryland,

“Rosenberg insists. Helinski concedes, and we agree that

the psychologist’s three remarks on the courthouse steps

essentially repeated what he had said earlier as a witness

during the hearing itself.” Pet. App. 98A. Additionally,

as also stated by the Court of Appeals, “[t]he record is

barren of any evidence suggesting that Dr. Rosenberg

acted maliciously in evaluating Jackie and subsequently

reporting his conclusions to the court and the television

news team.” Pet. App. 92A.

Asserting that the statements of Dr. Rosenberg broad-

cast on the news reports were defamatory, Mr. Helinski

filed this action. After the discovery process, Dr. Rosen-

berg moved for summary judgment on the ground, inter

alia, that the alleged defamatory statements were condi-

tionally privileged and therefore not actionable because

there was no evidence that Dr. Rosenberg acted with

malice or with any intent to cause harm to Mr. Helinski.

Finding that “no evidence [was] presented or prolfered

5

in this proceeding that would entitle the jury to be con-

vinced by any evidentiary standard . . . that Dr. Rosen-

berg, the Defendant, acted with malice or had reason to

know of any falsity,” Pet. App. 7A-8A, and recognizing

that the alleged defamatory statements were matters of

public concern which accurately recounted to the press

public testimony already given in an open judicial pro-

ceeding, the circuit court granted summary judgment in

favor of Dr. Rosenberg. Pet. App. 1A-18A. The Court

of Special Appeals of Maryland, the state’s intermediate

appellate court, reversed the summary judgment. Pet.

App. 19A-62A.

The Court of Appeals of Maryland granted Dr.

Rosenberg’s petition for writ of certiorari and rein-

Stated the judgment of the trial court solely on the

ground that Dr. Rosenberg’s statements enjoyed a quali-

fied privilege because they “conveyed a substantially fair

and accurate report of the judicial hearing in which the

psychologist had taken part as a witness.” Pet. App.

114A, and because there was nothing in the record to

suggest that Dr. Rosenberg abused the privilege recog-

nized for such reports.* While the Court recognized that

Dr. Rosenberg offered “three independent theories trig-

gering a malice standard: 1) that his statements were

subject to the so-called fair report privilege: 2) that his

Statements addressed a matter of public concern, child

abuse; Jand] 3) that his statements discussed a person,

Mr. Helinski, so steeped in controversy as to be a public

fieure.” the Court decided there was “no need to reach

the second and third of these points.” Pet. App. 82A.°

*The Court of Appeals also held that the “self-reported state-

ment” exception to the fair report privilege (as described in Re-

statement (Second) of Torts § 611 emt. ¢ (1977)) was inapplicable

because there was “not the remotest indication in the record that

Dr. Rosenberg sought in bad faith to testify at the domestic hearing

with some perverse wish to harm Mr. Helinski ... .” Pet. App.

113A.

$In this regard, Petitioner’s Brief, at page 8, incorrectly states

that the Court of Appeals agreed that the Helinski child custody

6

REASONS FOR DENYING THE WRIT

I. THE COURT OF APPEALS OF MARYLAND’S AP-

PLICATION OF THE QUALIFIED PRIVILEGE FOR

OUT-OF-COURT STATEMENTS (MADE IN RE-

SPONSE TO QUESTIONS BY THE MEDIA) WHICH

FAIRLY AND ACCURATELY REPEATED WHAT

WAS SAID MOMENTS EARLIER DURING AN IN-

COURT, PUBLIC PROCEEDING IS NOT A FED-

ERAL QUESTION AND DOES NOT CONFLICT

WITH DECISIONS OF THIS COURT, OTHER

STATE COURTS OF LAST RESORT OR UNITED

STATES COURTS OF APPEALS

A. Absent Restriction On Free Speech Violative Of

The First Amendment, The Law Of Defamation,

Including The Recognition And Application of

Privileges, Is A Matter Of State Common Law.

In pertinent part, 28 U.S.C. §$ 1257(a)_ provides:

“Final judgments or decrees rendered by the highest

court of a state in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari

where... any title, right, privilege, or immunity is spe-

cially set up or claimed under the Constitution .. . of

the United States.” See also Sup Ct. R. 10.1.) In

this case, the judgment below is not based upon a right,

privilege or immunity specially set up or claimed under

the Constitution of the United States. Rather, the sole

ground for the decision of the Court of Appeals of Mary-

land, application oi the fair report privilege, rests upon

that court's interpretation of Maryland common. law.

Separate constitutional issues relating to Mr. Helinski’s

status as a public figure and to the characterization of the

Helinski child custody dispute as a matter of public con-

dispute was not a matter of public concern. Additionally, contrary

to Petitioner’s assertion at page 11 of his Brief, the Court of

Appeals did mot~“decide” that Dr. Rosenberg acted negligently but

rather merely ‘‘assume/d|, without deciding, that Rosenberg acted

negligently in evaluating Jackie and in communicating the results

of his examination.” Pet. App. 85A-86A. Similarly, the Court only

assumed such negligence, if any, caused harm to Mr. Helinski. /d.

at 86A.

7

cern were not decided by the Court of Appeals. Pet.

App. 82A.

The tort of defamation is founded on the state interest

of providing individuals a means to be compensated “for

the harm inflicted on them by defamatory falsehood.”

Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974):

see also Linn v, United Plant Guard Workers Local ]]4.

383 U.S. 53, 63-64 (1966) (*. . . state remedies have

been designed to compensate the victim and enable him to

vindicate his reputation.”): Hearst Corp. v. Hughes, 297

Md. 112, 127, 466 A.2d 486, 493 (1983) (recognizing

defamation as the tort aimed at protecting individuals’

interests in their reputation): 2 Fowler V. Harper, ef al.,

The Law of Torts $5.1 (2d ed. 1986). Subject to First

Amendment protections in favor of free speech, state law

generally determines whether a claim for defamation will

lic and what elements need be proven in order for a

plaintiff to recover in any given case. See, e.g., Lapkoff

v. Wilks, 969 F.2d 78, 81 (4th Cir. 1992) (applying law

of the state in which alleged defamation occurred ).

Likewise, state law generally determines what, if any,

privileges protect the publisher of statements which are

alleged to be defamatory. See, e.g., Arochem Int'l, Inc.

v. Buirkle, 968 F.2d 266, 269-71 (2d Cir. 1992): Gen-

eral Elec, Co. v. Sargent & Lundy, 916 F.2d 1119. 1127

(6th Cir. 1990); Johnston v. Cartwright, 355 F.2d 32.

35-36 (8th Cir. 1966) (Blackmun, J.); De Ronde vy.

Gaytime Shops, Inc., 239 F.2d 735, 738 (2d Cir. 1957).4

In Maryland, the recognition of a privilege is premised

on the notion that an otherwise defamatory statement is

‘Thus, federal courts are compelled to apply the fair report privi-

lege if governing state law recognizes the privilege. See. C.9.,

Dorsey v. National Enquirer, -Inc., 973 F.2d 1431, 1434 (9th Cir.

1992) (applying Cal. law) ; Rushford v. New Yorker Magazine, Inc.,

846 F.2d 249, 254-55 (4th Cir. 1988) (applying Va. law}: Ronwin

v. Shapiro, 657 F.2d 1071, 1075-76 (9th Cir. 1981) (applving Ariz.

law); Schuster v. U.S. News & World Report, Inc., 602 F.2d 850,

854 (8th Cir. 1979) (applying Minn. law); see also Rosenbloom v.

Metromedia, Inc., 408 U.S. 29, 88 (1971) (pointing out that fair

report privilege is recognized under Pennsylvania law),

8

not actionable “if publication of the utterance advances

social policies of greater importance than the vindication

of a plaintiff's reputational interest.” Marchesi v. Fran-

chino, 283 Md. 131, 135, 387 A.2d 1129, 1131 (1978);

accord Mareck v. Johns Hopkins Univ., 60 Md. App. 217,

224, 482 A.2d 17, 21 (1984), cert. denied, 302 Md.

288, 487 A.2d 292 (1985); see generally 2 Harper,

supra, § 5.25 (discussing policy factors behind privileges).

Following well-settled law. the Court of Appeals of

Maryland determined in this case that, as a matter of

Maryland law and public policy, “[t}he public’s right to

know the business of its courts takes precedence in this

case.” Pet. App. 115A.” ,

Petitioner’s contention that the judgment below raises

an issue under the First Amendment of the United States

Constitution is incorrect. The holding of the Court of

Appeals places no imposition on free speech. Indeed,

recognition of the fair report privilege fosters free speech.

Review of this case by this Court would be appropriate

only if the fair report privilege placed “invalid restric-

tions on. . . constitutional freedoms of speech and press.”

New York Times Co. v. Sullivan, 376 U.S. 254, 265

(1964). This case presents the opposite; the fair report

privilege stimulates these constitutional freedoms.

B. The Fair Report Privilege, Upon Which The Judg-

ment Below Is Based, Is A Widely Recognized

Means Of Protecting Fair And Accurate Reports

Of Judicial Proceedings And Does Not Conflict

With Decisions Of This Court, Other State Courts

Of Last Resort, Or United States Courts Of Appeals.

In this case, the Court of Appeals of Maryland de-

scribed the important policy reasons behind the fair

report privilege:

Any one of three theories may serve as a rationale

for granting a privilege to such reports of events in

5In reaching this decision the Court of Appeals also recognized

that the fair report privilege is not limited to the press, but extends

to any person who reports on judicial proceedings. Pet. App. 96A.

—_ ee

9

court: 1) the agency rationale, by which the re-

porter acts as agent for an otherwise preoccupied

public which could, if it possessed the time, energy

or inclination, attend the proceedings; 2) the public

supervision rationale, by which the reporter provides

to the larger community data it needs to monitor

government institutions; 3) or the public informa-

tion rationale, by which the reporter provides infor-

mation affecting the greater public welfare.

While each of these theories might arguably serve

in this case, the agency rationale is clearly applica-

ble. Rosenberg acted as a conduit between the court-

room and the world at large. He recounted events

at a judicial hearing, entirely open to the public, that

any members of the community might have seen and

heard for themselves.

Pet. App. 94A-96A: see generally David A. Elder, The

Fair Report Privilege, §§ 1.00A, 1.01 (1988).

As in Maryland, the fair report privilege is recognized

by many states and leading commentators as a means of

assuring that fair and accurate reports of judicial (or

any other government) proceedings are protected. See

Elder, supra, § 3.01 (presenting state-by-state analysis of

fair report privilege with case citations): see also 2

Harper, supra, § 5.24; W. Page Keeton, et al., Prosser

and Keeton On The Law of Torts § 115, at 836 (Sth ed.

1984); Restatement (Second) of Torts $611 (1977).°

Moreover, the public policies behind the fair report

privilege are consistent with analogous decisions of this

Court. In Cox Breadcastine Corp. v. Cohn, 420 USS.

469 (1975), this Court stated that “ ‘[a] trial is a public

* Petitioner’s apparent reliance on Yerkie v. Post-Newsweel: Sta-

tions, Mich., Inc., 470 F. Supp. 91 (D. Md. 1979) for the proposition

that the fair report privilege is inapplicable to this case is mis-

placed. In Yerkie, the district court held that the privilege does not

apply to out-of-court statements made by the parties, counsel or

witnesses to a proceeding about evidence “expected to be given

which have not yet been made a part of the judicial proceeding, . ..”

470 F. Supp. at 94. Here, Dr. Rosenberg’s out-of-court statements

reported the content of evidence already presented in a judicial

proceeding.

10

event. What transpires in the court room is public prop-

erty.” 420 U.S. at 492 (quoting Craig v. Harney, 331

U.S. 367, 374 (1947)). Accordingly, “‘[t]here is no

liability when the defendant merely gives further publicity

to information about the plaintiff which is already public.

Thus, there is no liability for giving publicity to facts

about the plaintiffs life which are matters of public rec-

ord... .” ZJd. at 494 (citation omitted; ellipses in

original); see also Landmark Communications, Inc. v.

Virginia, 435 U.S. 829 (1978) (declaring unconstitu-

tional a law. making it a crime to publish information

regarding proceedings by state judicial review commis-

sion); Nixon v. Warner Communications, Inc., 435 U.S.

589, 609 (1978) (stating that Cox reaffirmed right of

the press to publish accurate information contained in

public court records); Oklahoma Publishing Co. v. Dis-

trict Ct., 430 U.S. 308 (1977) (striking down injunction

prohibiting disclosure of information obtained in juvenile

court); Nebraska Press Ass'n v. Stuart, 427 U.S. 539,

559 (1976) (“Truthful reports of public judicial pro-

ceedings have been afforded special protection against

subsequent punishment.” ).

In any event, it is clear that the fair report privilege

rests on sound reasons of policy, and that invocation of

the privilege is a determination that should be left to

state law.

CONCLUSION

For these reasons, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

WILLIAM F. RYAN, JR.

Counsel of Record

HOWARD R. FELDMAN

WHITEFORD, TAYLOR & PRESTON

Seven St. Paul Street

Suite 1400

Baltimore, Maryland 21202

(410) 347-8700

Counsel for Respondent

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