Sheppard v. EW SCRIPPS COMPANY
Decision Date | 21 January 1970 |
Docket Number | No. 18977.,18977. |
Citation | 421 F.2d 555 |
Parties | Samuel H. SHEPPARD, Plaintiff-Appellant, v. The E. W. SCRIPPS COMPANY, Louis B. Seltzer, Samuel R. Gerber, Defendants-Appellees. |
Court | U.S. Court of Appeals — Sixth Circuit |
Gerald Alch, Boston, Mass., for appellant; F. Lee Bailey, Boston, Mass., Benjamin L. Clark, Columbus, Ohio, Russell A. Sherman, Elyria, Ohio, on brief.
Dwight B. Buss, Cleveland, Ohio, for appellees, The E. W. Scripps Company and Louis B. Seltzer; Parker M. Orr, Don G. Pace, Baker, Hostetler & Patterson, Cleveland, Ohio, on brief.
John L. Dowling, Asst. Pros. Atty., Cleveland, Ohio, for appellee, Samuel R. Gerber; John T. Corrigan, Pros. Atty., of Cuyahoga County, A. M. Braun, Adam P. Angelas, Asst. Pros. Attys., Cleveland, Ohio, on brief.
Before PECK, McCREE and COMBS, Circuit Judges.
The complaint filed in the District Court in this action alleges a deprivation of constitutional rights and seeks recovery of damages under the provisions of 42 U.S.C. § 1983. The complaint alleges the murder of plaintiff's wife July 4, 1954, and his arrest, indictment, trial and conviction therefor. Recovery is sought from the publisher of a newspaper, its editor and the local county coroner, hereinafter referred to as Gerber. It is alleged that as a result of conspiratorial conduct of the defendants during the investigatory and trial proceedings culminating in his conviction plaintiff was deprived of a fair trial, due process of law and the rights, privileges and immunities secured to him by the United States Constitution. The judgment of conviction was subsequently vacated by the Supreme Court and the cause remanded for a new trial in the state court, which resulted in a verdict of acquittal. In the present action, the District Court sustained the defendants' motion to dismiss the complaint, and this appeal was perfected from the order granting that motion.
Early in its opinion, the District Court offers this observation:
"At the outset, this court determines that the complaint must fail in its entirety if, for any reason, it is insufficient to state a claim as to Gerber, for, since defendants Scripps and Seltzer are chargeable only as private citizens and cannot be said to act `under color of any State Law,\' it is clear from nearly a hundred years of case law that the Civil Rights Act, affording protection against deprivation of civil rights by state action, is not applicable to them, absent a conspiracy with one so acting."
We are in accord with this expression. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1947); In re Civil Rights Cases, 109 U.S. 3, 17, 3 S.Ct. 18, 27 L.Ed. 835 (1883); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); Cooper v. Wilson, 309 F.2d 153 (6th Cir. 1962); Jones v. Alfred H. Mayer Company, 255 F.Supp. 115 (E.D.Mo. 1966).
In his brief appellant states that the decision of the District Court appealed from was predicated upon two conclusions of law, namely that the complaint did not allege conduct by Gerber "under color of law," and that Gerber's position as coroner was quasi-judicial in character, affording him immunity. While it is true that the opinion of the District Court deals with these two issues at length, that opinion further resolves a third issue adversely to appellant in this language: "Nothing Gerber is alleged to have done under color of law could properly be said to be the cause of any deprivation of rights the plaintiff allegedly suffered." If this is true, whether or not the acts were done under color of law obviously becomes immaterial.
The issue as to whether Gerber's acts were the cause of the alleged constitutional deprivation has been passed upon by the Supreme Court in the opinion resulting in the vacation of appellant's conviction and the remand for retrial (Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). That this issue was squarely before the Supreme Court becomes apparent in the first paragraph of Mr. Justice Clark's opinion (384 U.S. 335, 86 S.Ct. 1508):
The opinion proceeds with a detailed review of the facts of the offense and of the trial, which is perhaps best summed up in the often quoted language of Judge Bell of the Supreme Court of Ohio and which is set forth in Justice Clark's opinion (384 U.S. 356, 86 S.Ct. 1519):
"
Justice Clark follows that quotation with this observation: "Indeed, every court that has considered this case, save the court that tried it, has deplored the manner in which the news media inflamed and prejudiced the public." The very fact that the trial was conducted under such deplorable conditions, however, points up the fact that the deprivation of appellant's constitutional rights resulted from the unfortunate circumstances accompanying the trial itself rather than from any conduct Gerber may have engaged in. That the Supreme Court found this to be true clearly appears from its opinion, which squarely places the blame where it really belongs under our system of administration of justice, on the trial judge.
After observing that the trial began two weeks "before a highly contested election at which both Chief Prosecutor Mahon and Trial Judge Blythin were candidates for judgeships," Justice Clark continues (384 U.S. 354-355, 86 S.Ct. 1518):
After a further review of the facts and the publicity attendant upon the trial, the opinion commented upon the absence of rules governing the use of the courtroom by newsmen and insulating the proceedings from prejudicial publicity and disruptive influences, and then concluded "that these procedures would have been sufficient to guarantee Sheppard a fair trial." (384 U.S. 358, 86 S.Ct. 1520). Finally, in concluding the opinion Justice Clark stated (384 U.S. 363, 86 S.Ct. 1522):
"Since the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom, we must reverse the denial of the habeas petition."
The essence of the complaint in the present case is contained in its allegations charging a deprivation of constitutional rights by Gerber, but as is demonstrated in the foregoing quotations the Supreme Court has already determined that the trial judge, not Gerber, is responsible for that deprivation. In view of that determination, it must be here concluded that the District Judge properly found that no cause of action was stated.
Since we find the controlling issue to have been determined by the Supreme Court it is unnecessary to here examine the other grounds relied upon by the District Judge, and we expressly refrain from expressing an opinion on the claimed deficiency of the complaint in not specifically stating that the various acts alleged were committed "under color of law," and as to whether Coroner Gerber was entitled to judicial immunity. We observe, however, that even in the absence of the opinion in Sheppard v. Maxwell, supra, the greater weight of authority and better reasoned decisions would...
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