Ball v. E.W. Scripps Co.

• Decision Date: 29 November 1990
• Docket Number: No. 87-SC-826-DG,87-SC-826-DG
• Citation: 801 S.W.2d 684
• Parties: 18 Media L. Rep. 1545 Louis A. BALL, Movant, v. E.W. SCRIPPS COMPANY, the Kentucky Post and Al Salvato, Respondents.
• Court: United States State Supreme Court — District of Kentucky

Page 684

801 S.W.2d 684

18 Media L. Rep. 1545

Louis A. BALL, Movant, v. E.W. SCRIPPS COMPANY, the Kentucky Post and Al Salvato, Respondents.

No. 87-SC-826-DG.

Supreme Court of Kentucky.

Nov. 29, 1990.

Frank V. Benton, III, Benton, Benton & Luedeke, Fort Thomas, for movant.

Richard G. Meyer, Deters, Benzinger & Lavelle, Covington, for respondents.

LEIBSON, Justice.

This is a libel action brought by a public official, Louis A. Ball, Commonwealth Attorney for Campbell County, against The Kentucky Post, a daily newspaper serving the Northern Kentucky area, and Al Salvato, the reporter for the Post who wrote the articles at issue. The case for libel was made primarily on the basis of a two-part series, "Portrait of a Prosecutor," appearing in The Kentucky Post on November 17 and 19, 1984.

The case was tried in November, 1985. Under the instructions submitted, a jury found statements in these articles were false and defamatory, and motivated by actual malice as properly defined in the jury instructions, and awarded Ball compensatory damages in the sum of $175,000. The jury was instructed on punitive damages, but made no punitive award. The newspaper appealed to the Kentucky Court of Appeals where the case was reversed and dismissed in August, 1987, by a divided court (2-1), the majority holding "there is no clear and convincing evidence that these articles were published with the requisite knowledge of falsity or reckless disregard for the truth necessary to remove them from constitutional protection." We accepted Discretionary Review and first heard oral arguments in June, 1988. We then decided to abate a final decision because the decision of the U.S. Sixth Circuit Court of Appeals in Connaughton v. Harte-Hanks Communications, Inc., 842 F.2d 825 (6th Cir.1988), a case similar in many respects to the present case, had been accepted for review by the United States Supreme Court. Its decision is reported in Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). After the Connaughton case was decided by the U.S. Supreme Court, we heard rearguments in the present case in June, 1990, and reconsidered the case. Based on the law of libel in Kentucky, as constrained by the decisions of the United States Supreme Court regarding the First Amendment protection of freedom of the press, including the mandate that appellate judges in such cases "exercise independent judgment and determine whether the record establishes actual malice with convincing clarity [Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514, 104 S.Ct. 1949 [1967] 80 L.Ed.2d 502 (1984) ]," we reverse the Court of Appeals and reinstate the judgment of the trial court.

The prominence of the defamatory material displayed in the articles in question can only be appreciated by viewing the newspapers as printed. "Portrait of a Prosecutor" is the lead story on the front page in both the November 17th and 19th newspapers, accompanied by oversized subheadings, photographs and graphs, all of dramatic quality.

The major sub-headline in the November 17 article is styled "Lou Ball's Record Lags Behind Others." There are graphs with statistical comparisons between Ball's Campbell County performance and neighboring Kenton County, very unfavorable to Ball. One graph is labeled in bold print, "Persistent Felony Offender Rates," and the second is labeled in equally bold print, "How Felony Cases Are Handled."

The large, bold-faced subheading on the November 19 article is styled "Serious Gap With The Police." Again Ball's picture is prominently displayed, this time accompanied by an equally prominent picture of "former narcotic officer David Patchell," with a statement from Patchell:

"He turns them right back, and they commit crime after crime. They couldn't have a better friend."

There is also a comment from Ball next to his picture, ¹ but the comment has little impact in offsetting the overall defamatory character of the article. There is a second article on page two in the November 19 edition, headlined "Ball's Record On Plaza Bingo and Cinema X," which is derogatory, but hardly defamatory. Its significance in this case relates only to the malice which can be inferred from the heavy handed way in which it was written.

There were also two editorials in the newspaper, one dated July 2, 1984, headlined "The Real Crime in Bellevue," and a second dated November 26, 1984, headlined "Our Challenge to Lou Ball," which are derogatory to Ball but not in themselves false and defamatory. The first accuses Ball of mishandling a Campbell County grand jury investigation into the Bellevue Police Department, and the second, generally critical of the way Ball performed his office, calls on "Mr. Ball to improve his record," and suggests:

"An unhappy public could ask him to resign, but the public might be better served if it looked to Mr. Ball's promise."

The material within these two editorials relates almost exclusively to expressions of opinion, although there are isolated references which are arguably false statements of underlying facts. The primary, if not the exclusive, purpose of the editorials is as evidence of bias or hostility against Ball, which, standing alone, would not suffice to prove actual malice against Ball, but which lends credence to other circumstances which the appellant asserts as proof of actual malice. Some of these other circumstances are:

1) Evidence that the newspaper reporter, Salvato, bore a grudge against some members of the Bellevue Police Department because of an incident occurring at a high school football game in Bellevue, Kentucky, during 1982, a grudge which he extended to Ball when he did not pursue charges against the Bellevue Police Department vigorously enough to suit Salvato. In 1982, Salvato was researching the topic of drug use among young persons in Northern Kentucky. According to the testimony of Officer Joe Chandler of the Bellevue police department, he was called to investigate a report that "Al Salvato was trying to get some girls to take some dope with him because he was depressed." Salvato was not arrested for this incident after he advised the police officer that "he was working for The Kentucky Post and that he had permission from Judge Kopowsky to be there to do this." Nevertheless, at the request of the school, Salvato was made to leave the game.

Salvato and the Post then published a number of stories concerning alleged police irregularities in Bellevue. The Kentucky State Police conducted an investigation of the Bellevue police department the early part of 1984. The State Police compiled and submitted a report to the Campbell County Grand Jury regarding the Bellevue police, but the Grand Jury returned no indictments. It was shortly thereafter that the July 2, 1984 Post editorial appeared criticizing Ball, whom the newspaper referred to as timid. Following the Grand Jury's report, the Post decided to take an in-depth look at Ball and his office. Based on these facts, Ball claims the jury had reason to believe Salvato was motivated to "get" Lou Ball.

2) In the investigation into the conduct of Lou Ball's office that followed, beginning in July 1984, Salvato reviewed Campbell Circuit Court Clerk's records to compile records regarding case disposition. Ball cites as evidence that Salvato acted with malice in his heart that when he would come to a case where a felony charge was reduced to a misdemeanor or a persistent felony offender charge was dismissed, Salvato would mark "good case" in his notes.

3) Salvato selectively interviewed only a few persons hostile to Ball as background material for his news articles, deliberately choosing not to interview those who could contradict their claims. For instance, he interviewed a convicted felon who claimed he was forced to plead guilty in exchange for dropping a persistent felony offender charge against him, but not the felon's lawyer. For further example, in investigating the background for Kenton County statistics, instead of talking to the person who was the Commonwealth's Attorney for the years in question (1979-84), he interviewed an Assistant currently seeking election to the position. The movant produced evidence Salvato knew the Kenton County system for negotiating in felony cases was different from the Campbell County system in that persistent felony offender charges were reduced before the case went to the Grand Jury in Kenton County and not in Campbell County, Salvato told his editor that cases were handled differently in Campbell County from Kenton County, but Salvato ignored this difference in the newspaper article of November 17, 1984, when he reported the comparison in statistics between Kenton and Campbell Counties.

4) The defamatory statement from former narcotics officer, David Patchell, that "Ball turns [criminals] right back, and they commit crime after crime; they couldn't have a better friend," was printed although Salvato was told by a judge who had considerable experience with Patchell that he was "a very poor police officer, totally unreliable." Also, before Patchell's statement was printed, Ball's Assistant Commonwealth Attorney had gone to The Post and Salvato and tried to show them some applicable case files to establish Patchell's unreliability, files which they had refused to review.

There is other evidence from witnesses, too extensive to detail in the space of this Opinion, from which one could infer that Salvato held a grudge against Lou Ball. One last item of particular note testified to by Ball was a statement that Salvato made to him during a telephone conversation, presumably implying a threat, that Ball would be "hearing from" them.

Turning from the underlying evidence which Ball cites as proof substantiating actual malice to the statements in the news articles which Ball specifically states to be false and defamatory, the major ones are these:

1) Patchell's statement,...