Opposition Brief — Bakin v. Cox Enterprises, Inc.

No. 93-195

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

GRANT R. BAKIN, M.D.,

Petitioner,

Vv.

COX ENTERPRISES, INC., et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Georgia

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

Peter C. Canfield

Counsel of Record

DOW, LOHNES & ALBERTSON

One Ravinia Drive

Suite 1600

Atlanta, Georgia 30346

(404) 901- 8857

Counsel for Petitioner

Cox Enterprises, Inc.

FP BEST AVAILABLE COPY

TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS .... «+. « « « i

TABLE OF AUTHORITIES ....... ii

JURISDICTION . . «© «© «© « « «© «© « « 1

SUMMARY OF THE ARGUMENT ...... 3

ARGUMENT . e = e . e o . se = e o . 4

I. PETITIONER’S INDEPENDENT

APPELLATE REVIEW

ARGUMENT WAS NOT RAISED

IN ANY PORTION OF THE

STATE COURT PROCEEDINGS . 4

II. THE COURT OF APPEALS OF

GEORGIA BASED ITS RULING

WHOLLY ON STATE LAW

GROUNDS . . . « « © «© « « 6

CONCIUISION «© «ses 6© 6 ©» % © @ 6 * 10

ii

TABLE OF AUTHORITIES

Cases

Armscorp of America, Inc. v.

Daugherty, 191 Ga. App. 19,

380 S.E.2d 729, (1984) .. « «

Bose Corp. v. Consumers Union

of U.S., Inc., 466 U.S. 485 .

(1984) ° . . . s e . ° . . * .

Clark v. Jeter, 486 U.S. 456

(1988) e* . o e o - . a o . . 7

FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1990) . « «© « e« «

Hortonville Joint School Dist.

No. 1 v. Hortonville Ed.

Ass’n., 426 U.S. 482 (1976) ..

Ledger-Enquirer, Co. v. Brown,

214 Ga. 422, 105 S.E.2d 229

ORS. 6 eo ee ae ee

Southern Business Mach. v.

Norwest Fin. Leasing, Inc., 194

Ga. App. 253, 390 S.E.2d 402,

cert. denied, 194 Ga. App.

912 (1990) e e = . . .* . . e .

Youakim v. Miller, 425 U.S. 231

(1976) e ” * ° . o * - * * o —

Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S. 562

(1972) e e * = a Z e a * o e =

PAGE

Miscellaneous

28 U.S.C.

§ 1257(a)

Sup. Ct. R. 14.5 .,

Sup. Ct. R. 14(h) .

iii

— ion ——_- Sie) “en =.

No. 93-195

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

GRANT R. BAKIN, M.D.,

Petitioner,

Vv.

COX ENTERPRISES, INC., et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Georgia’

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

Respondent Cox Enterprises, Inc.

respectfully submits this Opposition to

i/ Petitioner has erroneously

petitioned this Court for a writ of

certiorari to the Supreme Court of the

State of Georgia. Petitioner seeks

review of the judgment of the Court of

Appeals of Georgia.

2

the Petition for a Writ of Certiorari

of Petitioner Grant R. Bakin, M.D.¥Y

JURISDICTION

Petitioner asserts that this

Court’s jurisdiction in the case exists

under 28 U.S.C. § 1257(a) (1988). Pet.

at 2. That section allows this Court

to review state court judgments in

three situations: "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 question on the ground of

its being repugnant to the Constitution

- »« « Or where any title, right,

privilege, or immunity is specially set

up or claimed under the Constitution

2/ A list of Respondent’s

subsidiaries, in compliance with Rule

29, is attached hereto as Exhibit A.

a

3

This case presents none of the

three bases for jurisdiction prescribed

by 28 U.S.C. § 1257(a). The ruling of

the Court of Appeals of Georgia was

based solely on its application of

Georgia state libel law to the facts

before it. Moreover, the Petitioner

never raised any federal challenge to

that court’s interpretation of Georgia

libel law either before the court of

Appeals of Georgia or before the

Georgia Supreme Court. -This Court

therefore lacks jurisdiction to review

the decision of the Court of Appeals of

Georgia.

SUMMARY OF THE ARGUMENT

Petitioner challenges a judgment

in which the Court of Appeals of

Georgia found, as a matter of Georgia

state law, that 31 articles published

4

by Respondent contained no harmful

statements or hurtful innuendo of and

concerning the Petitioner. Petitioner

failed to raise any federal challenge

to the ruling of the Court of Appeals

of Georgia in any Georgia court.

Because the Court of Appeals of Georgia

did not rule on any issue of federal

law, and because the Petitioner has not

preserved any federal challenge to that

court’s interpretation of Georgia law,

this Court must deny the Petition for

Certiorari.

ARGUMENT

I. PETITIONER’S INDEPENDENT APPELLATE

REVIEW ARGUMENT WAS NOT RAISED IN

ANY PORTION OF THE STATE COURT

PROCEEDINGS.

It is well settled that this Court

will not hear arguments "not pressed or

passed upon below." FW/PBS nc. Vv.

City of Dallas, 493 U.S. 215, 217

a a .

5

(1990). See also Youakim v. Miller,

425 U.S. 231, 234 (1976) (per curiam) ;

Clark v. Jeter, 486 U.S. 456, 459

(1988) (when reviewing state court

decisions, the Supreme Court will not

decide federal claims unless "pressed

or passed upon" below). Because

Petitioner failed to raise the

applicability of the independent review

doctrine in any court below, he is

precluded from raising the issue in

this Court.

The Rules of the Supreme Court of

the United States further illustrate

the shortcomings in Petitioner’s

arguments. Rule 14(h) mandates that

when the Petitioner seeks review of a

state court decision, he must provide

specific references as to where, in

both trial and appeals courts, the

6

federal issue was raised below, as well

as how the courts passed upon it.

Petitioner has not complied and cannot

comply with this rule because the

alleged federal issue brought before

this Court was neither raised nor

passed upon below.” Under Supreme

Court Rule 14.5 such noncompliance

constitutes proper grounds for denial

of this Petition.

3/ Furthermore, the independent

appellate review doctrine as enunciated

in Bose Corp: v. Consumers Union of

U.S., Inc., 466 U.S. 485 (1984),

applies only in “reviewing a

determination of actual malice ina

case governed by New York Times v.

Sullivan." Bose, 466 U.S. at 514. The

Georgia Court of Appeals did not rule

on the issue of actual malice or on any

other constitutional issue. Hence

there would have been no basis for

Petitioner’s unusual’ independent

appellate review argument even if it

had been properly raised below.

7

II. THE COURT OF APPEALS OF GEORGIA

BASED ITS RULING WHOLLY ON STATE

LAW GROUNDS.

Petitioner cites three legal

aspects of the Court of Appeals of

Georgia decision with which he

disagrees, and for which he seeks

review. The rulings in question

pertain to (1) the lack of references

to Petitioner in 29 of the challenged

articles, (2) the average reader’s

inability to infer the alleged implied

defamations, and (3) the lack of any

hurtful innuendo regarding Petitioner

in the articles. Pet. at 9-10.

The first challenged aspect of the

ruling below is based on the Georgia

requirement that in order to be

considered defamatory, an article must

be “of and concerning" the plaintiff.

See Ledger-Enquirer, Co. v. Brown, 214

8

Ga. 422, 423, 105 S.E.2d 229, 230

(1958) (In order to state a claim under

Georgia libel law, "[t])he defamatory

words must refer to some ascertained or

ascertainable person, and that person

must be the plaintiff.").

The second challenged aspect of

the ruling below is based on the

Georgia requirement that the presence

of defamatory content must be evaluated

from the point of view of the average

reader. See Southern Business Mach. v.

Norwest Fin. Leasing, Inc., 194 Ga.

App. 253, 260, 390 S.E.2d 402, 408, (in

determining whether a writing is

libelous under Georgia law, courts

consider the construction given by an

average reader) (citations omitted),

cert. denied, 194 Ga. App. 912 (1990).

9

The final aspect of the ruling of

the Court of Appeals of Georgia

challenged by Petitioner rests on the

Georgia requirement that in order to be

ruled defamatory, a statement must

contain some hurtful innuendo relating

to the plaintiff. See Armscorp of

America, Inc. v. Daugherty, 191 Ga.

App. 19, 20, 380 S.E.2d 729, 730 (1984)

(Under Georgia libel law, "[{i]f the

words used really contain no reflection

on any particular individual, no

averment or innuendo can make them

defamatory.") (citation omitted).

The penultimate sentence of the

opinion of the Court of Appeals of

Georgia confirms that the sole basis

for its ruling was that the challenged

publications did not satisfy the

Georgia criteria for a defamation

10

action. Pet. at lla ("Therefore,

because the 31 articles are not

defamatory, the trial court erred in

denying appellant’s motion for summary

judgment.") (emphasis added).

Because the ruling challenged by

Petitioner is based wholly on Georgia

state libel law, and because Petitioner

failed to raise any federal challenge

to that ruling below, this Court is

bound to accept the ruling of the Court

of Appeals of Georgia. Zacchini v.

Scripps-Howard Broadcasting Co., 433

U.S. 562, 566 (1972) (Supreme Court’s

"only power over state judgments is to

correct them to the extent that they

incorrectly adjudge federal rights.")

(citations omitted).

11

CONCLUSION

The Court of Appeals of Georgia

based its ruling solely on state law

grounds and Petitioner failed to raise

any federal challenge to that ruling

below. This Court thus lacks

jurisdiction to review that judgment.

Therefore, based upon the foregoing,

Respondent Cox Enterprises, Inc.

respectfully requests that Dr. Bakin’s

Petition for a Writ of Certiorari be

denied.

Peter C. Canfield

unsel of Recor

DOW, LOHNES & ALBERTSON

One Ravinia Drive

Suite 1600

Atlanta, Georgia 30346

(404) 901- 8857

Counsel for Petitioner

Cox Enterprises, Inc.

EXHIBIT A

Cox Enterprises, Inc., a Delaware

corporation, is itself the ultimate

parent company and all of its

subsidiaries (except wholly-owned

subsidiaries) are listed below (all of

the below-listed corporations are

indirect subsidiaries of Cox

Enterprises, Inc. and except as

otherwise noted, incorporated in the

State of Delaware):

Manheim Auctions, Inc.

Arizona Auction Services,

Inc. ;

Atlanta Auto Auction, Inc.

California Auto Dealers

Exchange, Inc.

Colorado Auto Auction

Services Corporation

Florida Auto Auction Orlando,

Inc.

Fredericksburg Auto Auction,

Inc.

Fresno Auto Dealers Auction,

inc.

Georgia Auction Services,

Inc.

Kansas City Auto Auction,

inc.

Manheim Services Corporation

Manheim Finance Canada, Inc.

Manheim Auto Auctions Limited

Manheim Auto Resale Services,

Inc.

Manheim Auctions Government

Services, Inc.

Manheim Investments, Inc.

2

Manheim’s Metro Detroit Auto

Auction, Inc.

Missouri Auction Services

Corporation

National Auto Dealers

Exchange, Inc.

New York Auto Auction

Services, Inc.

New England Auto Auction,

Inc.

New Manheim Auto Auctions

Limited

North Carolina Services

Corporation

Texas Auto Auction Services,

Inc.

The Gold Book Inc. (a Georgia

corporation)

Wisconsin Services

Corporation

Cox Cable Cleveland Area, Inc.

Cox Cable Saginaw, Inc.

Cox Cable Quad Cities, Inc.

Cox Cable Spokane, Inc.