Connaughton v. Harte Hanks Communications, Inc.

• Decision Date: 04 April 1988
• Docket Number: No. 86-3170,86-3170
• Citation: 842 F.2d 825
• Parties: , 14 Media L. Rep. 2209 Daniel CONNAUGHTON, Plaintiff-Appellee, v. HARTE HANKS COMMUNICATIONS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 825

842 F.2d 825

56 USLW 2483, 14 Media L. Rep. 2209

Daniel CONNAUGHTON, Plaintiff-Appellee, v. HARTE HANKS COMMUNICATIONS, INC., Defendant-Appellant.

No. 86-3170.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 20, 1987.

Decided Jan. 28, 1988.

Rehearing and Rehearing En Banc Denied April 4, 1988.

Richard L. Creighton, Jr. argued, Cincinnati, Ohio, for defendant-appellant.

John A. Lloyd, Jr. argued, Cincinnati, Ohio, for plaintiff-appellee.

Before KEITH, KRUPANSKY and GUY, Circuit Judges.

KRUPANSKY, Circuit Judge.

Appellants challenge this Court to determine the limits of its responsibility to review a jury's verdict against a publisher in this action for libel implicating important First Amendment issues pursuant to the dictates of the Supreme Court mandating appellate courts to conduct an independent examination of the entire record of the proceedings to ensure that the judgment does not pose a forbidden intrusion into First Amendment rights of free expression. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984); St. Amant v. Thompson, 390 U.S. 727, 732-33, 88 S.Ct. 1323, 1326-27, 20 L.Ed.2d 262 (1968); New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964).

The gravamen of the assignment imposes the commitment to explore the delicate relationship between First Amendment rights of free expression and the common law protection of an individual's interest in reputation. Ollman v. Evans, 750 F.2d 970, 974 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985).

The threshold to the resolution of the appellant's challenge is complicated by an illusory conflict between equally imposing rules of law. Juxtaposed are the clearly erroneous and due regard standard of appellate review that shall be accorded to the opportunity of the fact-finder to assess the credibility of the witnesses upon direct and cross examination, either the judge in a bench trial as imposed by Fed.R.Civ.P. 52(a), which dictates that

[f]indings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses,

or judicial precedent that impresses the identical clearly erroneous and due regard standard of appellate review upon factual findings of a jury, see, e.g., Strauss v. Stratojac Corp., 810 F.2d 679, 685 (7th Cir.1987) ("This court can overrule the jury's determination only if it is clearly erroneous."); Jefferson Nat'l Bank v. Central Nat'l Bank in Chicago, 700 F.2d 1143, 1156 (7th Cir.1983) ("[W]e must accept the findings of the jury unless those findings are clearly erroneous."); accord Manufacturers Hanover Trust v. Drysdale Sec. Corp., 801 F.2d 13, 27 n. 8 (2nd Cir.1986) (A jury's "responses to factual interrogatories ... [are] subject to the clearly erroneous rule on appeal...."), cert. denied sub nom. Arthur Andersen & Co. v. Manufacturers Hanover Trust, --- U.S. ----, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987) ¹, with the Supreme Court's equally decisive command to appellate courts in cases involving considerations of actual malice joining First Amendment issues to "make an independent examination of the whole record" and insure that "the judgment does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. at 285, 84 S.Ct. at 729 (footnote omitted) (quoting Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963)). These rules probe the court's reasoning in its disposition of this appellate review.

Guidance in harmonizing the rules confronting the court in its search for a resolution is afforded by the pronouncements of Bose Corp. :

Our standard of review must be faithful to both Rule 52(a) and the rule of independent review applied in New York Times Co. v. Sullivan. The conflict between the two rules is in some respects more apparent than real. The New York Times rule emphasizes the need for an appellate court to make an independent examination of the entire record; Rule 52(a) never forbids such an examination, and indeed our seminal decision on the Rule expressly contemplated a review of the entire record, stating that a "finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court, on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. , 395, 68 S.Ct. , 542, 92 L.Ed. 746 (1948) ]. Moreover, Rule 52(a) commands that "due regard" shall be given to the trial judge's opportunity to observe the demeanor of the witnesses; the constitutionally-based rule of independent review permits this opportunity to be given its due.

Bose Corp., 466 U.S. at 499-500, 104 S.Ct. at 1959 (emphasis added).

Mindful of the dictates of Bose Corp. this court's attention is, in the first instance, directed to an examination of the entire record of subsidiary, operative or preliminary facts (hereinafter referred to as the operative facts), however characterized, to determine if the jury's findings were clearly erroneous. The chimera of discord between these respected rules of law emerges from a befitting cyclorama of a political campaign with an uncomplicated scenario that is a model for joining the sensitive constitutional issues presented with clarity and precision.

Daniel Connaughton (Connaughton), the plaintiff-appellee, a highly reputable and respected young attorney in the City of Hamilton, Ohio, a former Hamilton City Prosecutor, Assistant Butler County prosecutor, acting judge of the Municipal Court of Hamilton, Ohio and successful practicing lawyer, filed his declaration of candidacy during February of 1983 for a judgeship on that court to be decided at an election on November 8, 1983. During the time period relevant to this dispute the defendant-appellant, Harte Hanks Communications Inc. (Hanks or Journal), owned and published the Journal News (Journal), a daily afternoon newspaper that enjoyed the greatest circulation in the Hamilton, Ohio area. The Cincinnati Enquirer (Enquirer), a morning newspaper published in Cincinnati, Ohio, and a successful competitor of the Journal, was threatening its circulation in the area. James Dolan (Dolan), who had been the endorsed candidate of the Journal prior to his election to his first six-year term of office, was the incumbent judge Connaughton sought to replace at the forthcoming election. Since both candidates were prominent Democrats and no Republican declaration of candidacy had been filed, Connaughton's announcement caused Dolan to file as an Independent to avert a primary election. Without issues, the campaign struggled through the summer doldrums as a typical colorless and uneventful judicial contest with the parties extolling their own qualifications and experience to attract voter support. In September, however, the campaign exploded into the most notorious contest in Butler County.

Background for the probative operative facts which joined the constitutional issues of this case is best presented in a resume of proofs developed by the respective parties during the course of the trial.

Plaintiff-appellant, at the outset of his case, conceded that he was a "public figure" as defined in relevant Supreme Court precedent. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789 (1974); New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Thus, Connaughton was charged with the burden of proving by clear and convincing evidence that the allegedly libelous November 1, 1983 article here in controversy was published with "actual malice,"--that is, "with knowledge that it was false or with reckless disregard of whether it was false or Briefly summarized, the plaintiff's proof disclosed that for a considerable period of time before Connaughton's announcement of candidacy, unsupported rumors persisted throughout Butler County linking Billy New (New), the Director of Court Services and Chief Administrative Officer for the City of Hamilton Municipal Court, a Dolan appointee, with alleged corrupt practices arising from the administration of his official position. Subsequent to his declaration of candidacy, Connaughton, during the early stages of his campaign, criticized Dolan for the disposition of an inordinately large number of cases in his chambers rather than in open court, as well as for the leniency that Dolan extended in DWI (driving while intoxicated) cases. He at no time alluded to the unsupported rumors of corruption associated with the Hamilton Municipal Court.

                not."   See New York Times v. Sullivan, 376 U.S. at 280, 84 S.Ct. at 726
                

On or about September 8, 1983, June Taylor (Taylor), the president of the Southern Ohio chapter of MADD (Mothers Against Drunk Driving), advised Connaughton's wife Martha to contact Patty Stevens (Stevens) who had important information concerning her former husband Jack Schreifer's treatment in the Hamilton Municipal Court which Stevens was desirous of bringing to public attention. On September 15, as a result of Taylor's request, Connaughton's wife visited Stevens at her residence and told her that Connaughton would meet with Stevens if she had information concerning the administration of the court. Stevens gave no indication of her personal involvement and intimate knowledge of New's extensive solicitation and acceptance of bribes. She indicated that she would notify Martha Connaughton in the event that she decided in favor of disclosing her information. On Friday, September 16, Stevens instructed her mother to telephone Connaughton's wife to arrange a meeting with Connaughton after she, Stevens, finished work at 11:00 p.m. that night at which time she would make her information available.

Stevens and her siste...