Baer v. Rosenblatt

• Decision Date: 29 December 1967
• Docket Number: No. 5627,5627
• Parties: Frank P. BEAR v. Alfred D. ROSENBLATT.
• Court: New Hampshire Supreme Court

Page 130

237 A.2d 130

108 N.H. 368

Frank P. BEAR v. Alfred D. ROSENBLATT.

No. 5627.

Supreme Court of New Hampshire.

Argued Sept. 6, 1967.

Decided Dec. 29, 1967.

Doherty & Dyer, Laconia, and McLane, Carleton, Graf, Greene & Brown, Manchester (Stanley M. Brown, Manchester, orally), for the plaintiff.

Nighswander, Lord & Martin and Conrad E. Snow, Laconia (Mr. Arthur H. Nighswander, Laconia, orally), for defendant.

DUNCAN, Justice.

The Superior Court (Keller, J.) has transferred to this court without ruling and in advance of retrial of an action for libel, questions of law presented by motions filed following reversal by the United States Supreme Court in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597, of a judgment for the plaintiff entered in this court on October 6, 1964. Baer v. Rosenblatt, 106 N.H. 26, 203 A.2d 773. As appears from the opinion of the United States Supreme Court, the case was remanded to afford the plaintiff Baer an opportunity 'to bring his claim outside the New York Times rule' (New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686), holding that a public official may 'be allowed the civil remedy (for libel) only if he establishes that the utterance was false, and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true.' Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125. See Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, supra; 380 U.S. 941, 85 S.Ct. 1023, 13 L.Ed.2d 961; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (Decided Nov. 6, 1967).

In remanding the action the United States Supreme Court stated that 'as is the case with questions of privilege generally it is for the trial judge in the first instance to determine whether the proofs show respondent (plaintiff) to be a 'public official. " Rosenblatt v. Baer, supra, 383 U.S. 88, 86 S.Ct. 677.

The plaintiff maintains that he has a right to jury trial of the issue of whether he was a public official, and that the issue should be determined as a part of retrial of the merits. The defendant argues that the record of the prior trial held before the New York Times case was decided, makes at least a prima facie showing on undisputed facts that the plaintiff was a public official, and contends that the trial Court should determine as a matter of law that he was a public official in the absence of an offer by the plaintiff to prove facts which would warrant a finding that he was not. The defendant further maintains that the issue of public official vel non should first be separately tried, in part because the requirements of proof of malice will vary, depending upon the resolution of the first issue.

In the opinion remanding this case, the United States Supreme Court indicated that the New York Times rule, which it had previously said did not necessarily extend into the 'lower ranks of governmental employees,' 'applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.' Rosenblatt v. Baer, supra, 85, 86 S.Ct. 676. Cf. Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094. While the Court stated that the plaintiff 'may have held such a position,' it considered that the record left open 'the possibility that (he) could have adduced proofs to bring his claim outside the New York Times rule' (Rosenblatt v. Baer, supra, 383 U.S. 87, 86 S.Ct. 676), or 'to present a jury question of malice,' and that those possibilities should not be foreclosed by that Court.

Since the Supreme Court did not consider that the status of the plaintiff should be determined as a matter of law upon the record of the former trial, this court is not prepared to hold that the Trial Court may now so determine it. Neither do we consider that it should be so determined upon that record plus an offer of proof by the plaintiff of additional evidence on the issue which he may propose to offer. Granting, as we must, that the Supreme Court's opinion contained the 'remark' that it is 'for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official" (Id., 88, 86 S.Ct. 677) we do not interpret this remark as requiring such a determination in advance of retrial. That Court has pointed out that the status of the plaintiff with respect to the New York Times rule depends not only upon whether he had substantial responsibility for or control over the conduct of governmental affairs, or appeared to the public to have such responsibility or control, but also upon whether his position had 'such apparent importance' that the public had (or took) 'an independent interest in (his) qualifications and performance * * * beyond the general public interest in the qualifications and performance of all governmental employees * * *.' Rosenblatt v. Baer, supra, 86, 86 S.Ct. 676.

In other words as we read the decisions of the Supreme Court it is not sufficient in order to establish the privilege afforded by the New York Times rule for this defendant to show that the plaintiff had general charge of financial transactions at the Belknap area, and general supervisory powers under the direction of the county commissioners and county convention. It must appear that his position was 'one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion' engendered by the defendant's charges of which the plaintiff complains. Rosenblatt v. Baer, supra, 87, n. 13, 86 S.Ct. 676; Time Inc. v. Hill, 385 U.S. 374, 407, 87 S.Ct. 534, 17 L.Ed.2d 456 (opinion of Harlan, J.); Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 18 L.Ed.2d 1094.

We are counseled against 'blind application of New York Times Co. v. Sullivan,' in favor of consideration of 'the factors which arise in the particular context.' Curtis Publishing Co. v. Butts, supra, 148, 87 S.Ct. 1988. These considerations present issues of fact not tried at the former trial, upon which the plaintiff is entitled to the decision of a jury under the Constitution of this state. Const. Pt. 1, Arts. 14, 20; State v. Saunders, 66 N.H. 39, 76, 25 A. 588, 18 L.R.A....