Koch v. Koch Industries, Inc.

• Citation: 2 F.Supp.2d 1409
• Decision Date: 23 March 1998
• Docket Number: No. 85-1636-SAC.,85-1636-SAC.
• Parties: William I. KOCH, et al., Plaintiffs, v. KOCH INDUSTRIES, INC., et al., Defendants.
• Court: U.S. District Court — District of Kansas

2 F.Supp.2d 1409

William I. KOCH, et al., Plaintiffs, v. KOCH INDUSTRIES, INC., et al., Defendants.

No. 85-1636-SAC.

United States District Court, D. Kansas.

March 23, 1998.

Clarifying Order March 24, 1998.

Clifford L. Malone, Adams, Jones, Robinson & Malone, Wichita, KS, Thomas E. Wright, Wright, Henson, Somers, Sebelius, Clark & Baker, L.L.P., Topeka, KS, Harry L. Najim, Najim Law Offices, Wichita, KS, John T. Hickey, Jr., Alex Dimitrief, Kirkland & Ellis, Chicago, IL, Joseph F. Ryan, Lyne, Woodworth & Evarts, Boston, MA, Fred H. Bartlit, Jr., Bartlit, Beck, Herman, Palenchar & Scott, Chicago, IL, Donald E. Scott, Ellen A. Cirangle, Bartlit, Beck, Herman, Palenchar & Scott, Denver, CO, Gregory S. C. Huffman, L. James Berglund, II, Thompson & Knight, Dallas, TX, Russell E. Brooks, Milbank, Tweed, Hadley & McCloy, New York, NY, Stephen M. Joseph, Redmond & Nazar, L.L.P., Wichita, KS, Michael Paul Kirschner, Lee & Kirschner, P.L.L.C., Oklahoma City, OK, for William I. Koch, Oxbow Energy Inc., L. B. Simmons Energy Inc. dba Rocket Oil Company, United States Trust Company of New York, as Trustee, Spring Creek Art Foundation Inc., Gay A. Roane, Ann Alspaugh, Marjorie Simmons Gray, as Trustee, Northern Trust Company, as Trustee, Marjorie L. Simmons, as Trustee, Louis Howard Andres Cox, Paul Anthony Andres Cox, Holly A. Andres Cox Farabee, Frederick R. Koch, Nationsbank N.A., co-trustee of the Louis Howard Andres Cox Trusts B & D, plaintiffs.

James M. Armstrong, Robert L. Howard, Timothy B. Mustaine, Foulston & Siefkin L.L.P., Donald L. Cordes, Koch Industries, Inc., Wichita, KS, for Koch Industries Inc., Charles G. Koch, Sterling V. Varner, David H. Koch, Donald L. Cordes, Thomas M. Carey, defendants.

Michael W. Merriam, Gehrt & Roberts, Chartered, Daniel R. Lykins, Bryan, Lykins & Hejtmanek, P.A., Topeka, KS, for Kansas Press Association, Kansas Association of Broadcasters, Wichita Eagle-Beacon, Topeka Capital-Journal, WIBW-TV, Kansas City Star Company, The, Wichita Business Journal, Harris Enterprises, Inc., Koch Crime Comm, movants.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This case has been on file since 1985. Trial is set to commence on April 6, 1998. Among the deluge of the other complicated matters which the court must resolve in the few remaining days before trial comes the plaintiffs' "Motion for Order to Show Cause Why Defendants Should Not be Held in Contempt and for Order Prohibiting ExtraJudicial Statements to the News Media" (Dk. 715). The plaintiffs' motion essentially has two components. First, the plaintiffs suggest that the defendants have improperly sponsored a telephone survey of Topeka residents "concerning their attitudes toward Koch Industries and Bill and Charles Koch." The plaintiffs contend that if the defendants have engaged in such polling, that conduct is in direct contravention of the order of the court announced at the February 9, 1998, status conference. Second, the plaintiffs seek an order addressing a broader concern regarding pretrial publicity, arguing that "the defendants are taking action to generate extensive prejudicial publicity in Topeka immediately prior to and during the trial." The plaintiffs "move for an order pursuant to D. Kan. Rule 83.2.3¹ prohibiting any of the parties, attorneys and witnesses in this case from making any extrajudicial statements to the press or from otherwise using their influence to encourage the generation of prejudicial publicity prior to or during the trial."

Attached to the plaintiffs' motion are several exhibits, including a videotape copy of a three part interview of Charles Koch, conducted and aired by KAKE TV, the Wichita, Kansas, ABC affiliate. The interview was apparently broadcast in Wichita on March 4-6, 1998. In the third installment of the interview, Charles Koch specifically discusses this lawsuit and his perception of true motives of his brother, William Koch, for initiating this and other lawsuits. In that same installment, William Koch was also interviewed by KAKE TV. During the interview, William Koch elaborates on his motives for bringing this lawsuit—eschewing any notion that this lawsuit is brought for anything but purely business reasons.

The defendants respond to the plaintiffs' motion, arguing that they did not violate the court's February 9, 1998, order. The defendants acknowledge that Koch Industries hired an outside survey firm to conduct public opinion polling. The defendants state however, that the survey was performed only to gather current data for purposes of honing its advertising strategy for its burgeoning business in agriculture related products. Counsel for the defendants was aware of the intended survey, but believed that "no survey or poll would be conducted in the 17-county jury pool area, and that none of the 100 + people who completed questionnaires would be contacted regardless of residence." According to the defendants, "[a]pparently, due to mis-communication, the outside survey firm did not understand that I had intended that no one at all in the 17-county area would be contacted." Additional precautions were taken to ensure that no member of the prospective juror pool were contacted, and apparently none were. In addition, the survey questions did not expressly refer to this lawsuit.

In regard to the plaintiffs' request for an order controlling pretrial publicity, the defendants wholeheartedly agree that "the court should enter an order, pursuant to 83.2.3 and (sic) applicable to all parties and their representatives (including the Koch Crime Commission), that precludes any further extra judicial statements to the media about this case or any disparaging comments about the parties or witnesses, or advertising in the Topeka area by either side (including the Koch Crime Commission), until the conclusion of the trial of this case." The defendants suggest that William Koch's sponsorship of the Koch Crime Commission is nothing more than thinly veiled campaign to enhance his image in the minds of prospective jurors. The defendants go on to suggest that their contacts with the media are simply a measured response to comments made by the plaintiffs.

In their two "supplemental" briefs, the plaintiffs add additional information buttressing their belief that the defendants intend to inundate the local television media with advertisements "glorifying Koch Industries and Charles Koch" in a new "Image Campaign." The plaintiffs also argue that the defendants' prejudicial, besmirching comments about William Koch and this lawsuit compel them to respond to inquiries from the news media.

Legal Standards: Pretrial Publicity in Civil Cases

The jury's objective in all cases is to search for the truth. See Sims v. ANR Freight System, Inc., 77 F.3d 846, 849 (5th Cir.1996) ("A trial is a proceeding designed to be a search for the truth."). Outside influences potentially impair the jury's ability to search for the truth. See Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907) ("The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."); United States v. Weisman, 736 F.2d 421, 424 (7th Cir.1984) ("It is a fundamental principle of our jurisprudence `the jury's verdict must be based on evidence received in open court, and not from outside sources.'") (quoting Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)), cert. denied, 469 U.S. 983, 105 S.Ct. 390, 83 L.Ed.2d 324 (1984). Pretrial publicity is an outside influence that may adversely affect the fairness of jury process.

Problems caused by prejudicial pretrial publicity typically arise in the criminal context. Sensational or controversial criminal trials are generally more likely to capture the fascination of the public and the press. Numerous cases attempt to reconcile the tension between a criminal defendant's Sixth Amendment right to trial before an impartial jury and other person's First Amendment right to free speech. See, e.g., United States v. Walker, 890 F.Supp. 954 (D.Kan.1995). "The Supreme Court has recognized that conflict between freedom of speech and the right to a fair trial is no less troubling in the non-criminal context." Bailey v. Systems Innovation, Inc., 852 F.2d 93, 97 (3rd Cir.1988). This is so because "`[t]here is a constitutional right to a fair trial in a civil case.'" Latiolais v. Whitley, 93 F.3d 205, 207 (5th Cir.1996) (quoting Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir.1993)). Nevertheless, "[s]ome courts have employed a hierarchical type of analysis, suggesting that criminal trials are subject to greater fair trial concerns than civil trials." Bailey, 852 F.2d at 98. "The Supreme Court, however, has declined to assign a priority between first amendment and sixth amendment rights." Id. (citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 561, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)). "Similarly, first amendment analysis does not vary in response to the competing seventh amendment purpose." Id.

An order that prohibits the utterance or publication of particular information or commentary imposes a "prior restraint" on speech. A prior restraint on constitutionally protected expression, even one that is intended to protect a defendant's Sixth Amendment right to trial before an impartial jury, normally carries a heavy presumption against its constitutional validity.

United States v. Salameh, 992 F.2d 445, 446-47 (2nd Cir.1993). As in any case involving pretrial publicity, the court must decide whether "the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Nebraska Press Ass'n, 427 U.S. at 562, 96 S.Ct. 2791, (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir.1950) (Hand, L., J.), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951)...