Gadsden County Times Inc. v. Horne, TT-211

• Decision Date: 11 March 1980
• Docket Number: No. TT-211,TT-211
• Parties: 5 Media L. Rep. 2673 GADSDEN COUNTY TIMES INCORPORATED, Timothy O. Matthew, Collins Conner, and Creston Nelson-Morrill, Petitioners, v. Mallory E. HORNE, Respondent.
• Court: Florida District Court of Appeals

Page 347

382 So.2d 347

5 Media L. Rep. 2673

GADSDEN COUNTY TIMES INCORPORATED, Timothy O. Matthew, Collins Conner, and Creston Nelson-Morrill, Petitioners, v. Mallory E. HORNE, Respondent.

No. TT-211.

District Court of Appeal of Florida, First District.

March 11, 1980.

On Rehearing April 22, 1980.

Sidney L. Matthew, Tallahassee, for petitioners.

Mallory E. Horne, Tallahassee, pro se.

LARRY G. SMITH, Judge.

This case is before this court on petition for common law certiorari. Petitioners, Gadsden County Times Incorporated, Timothy O. Matthew, Collins Conner, and Creston Nelson-Morrill, are the defendants in a libel suit filed by respondent-plaintiff, Mallory E. Horne. The trial judge denied petitioners' motion for partial summary judgment in which petitioners requested an order adjudging plaintiff to be a "public figure", so as to make applicable in the libel suit the "actual malice" standard of proof required by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We deny the petition on jurisdictional grounds.

Petitioners contend that they are entitled to a ruling by this court holding plaintiff is a public figure as a matter of law. They assert that the trial judge's failure to so order (1) has a "chilling effect" upon their exercise of First Amendment rights, since petitioners are thereby left uncertain whether plaintiff is a "public figure", or a "private person", which in turn requires petitioners to exercise self-restraint in publishing further news stories concerning plaintiff pending litigation of the libel suit; and (2) their uncertainty as to plaintiff's status further motivates self-imposed prior restraints in publishing news articles concerning plaintiff, because of their reluctance to provide further material which plaintiff might later use against them in attempting to prove his case.

Appellate review of interlocutory orders by certiorari is a remedy available in a restricted category of cases. Certiorari will be granted only in cases in which it clearly appears that there is no full, adequate and complete remedy available to the petitioner by appeal after final judgment, as where (a) the trial court has acted without or in excess of its jurisdiction, or (b) its order does not conform to the essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. Pullman Company v. Fleishel, 101 So.2d 188 (Fla. 1st DCA 1958); Tallahassee Democrat v. Pogue, 280 So.2d 512 (Fla. 1st DCA 1973); and West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975). As a general rule the burden, vexation, or hazard of defending litigation does not furnish a basis for certiorari intervention by the appellate courts. Such burdens are "one of the hazards of living and doing business under a system of free enterprise in which one who conceives himself to be injured is privileged to seek redress in a court of law". Pullman Company v. Fleishel, supra, at 190.

Petitioners' claims that the free exercise of their First Amendment rights is jeopardized by their self-imposed prior restraints on further news publications about plaintiff during trial do not, in our opinion, reach the level of material injury required for certiorari intervention. Petitioners cite no case, state or federal, in which these claims have formed the basis for the exercise of common law certiorari jurisdiction. They rely heavily upon federal cases, citing Time, Inc. v. McLaney, 406 F.2d 565 (5th Cir. 1969); Dacey v. Florida Bar, Inc., 427 F.2d 1292 (5th Cir. 1970); and Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970), among others. In these cases the court reviewed interlocutory orders, in libel cases, denying defense motions for summary judgment. However, although the principles governing these decisions have been considered, we do not view them as controlling authority on the issue presented to this court. First, the jurisdictional vehicle in these federal cases was not certiorari, but interlocutory appeal, pursuant to provisions of 28 U.S.C.A., § 1292(b), effective 1958. The Code permits interlocutory appeal of certain rulings, including denial of summary judgment, where the trial judge certifies: (1) That the interlocutory order involves a controlling question of law as to which there is substantial grounds for difference of opinion, and (2) immediate appeal from the order A second reason why we do not find the cases cited controlling is based upon a fundamental difference in the posture of this case, as compared to those cited by petitioners. In the instant case, a favorable ruling on the "public figure" issue would not dispose of this litigation. In McLaney and the other cases cited the court had before it both the "public figure" issue and the "actual malice" issue, so that a ruling favorable to defendants on both issues would dispose of the litigation. ¹ In McLaney, the court sounded a caveat, advising every unsuccessful litigant not to expect an interlocutory appeal from denial of a summary judgment, pointing out that First Amendment cases fall into a different category than the ordinary case, because of the possible impingement upon freedom of the press produced by actions for libel. Review of such cases would be favored, indicated the court, when a trial court and the court of appeals "jointly consider" that the failure to dismiss the libel suit might necessitate "long and expensive trial proceedings, which, if not really warranted, would themselves offend the principles enunciated in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, ((1965)) because of the chilling effect of such litigation" (McLaney, supra, at 566). Thus, the court reasoned, although the federal courts are reluctant to deprive litigants of a jury trial:

may materially advance the ultimate determination of the litigation. The court of appeals then may in its discretion, permit an appeal. See Time, Inc. v. McLaney, supra, at 566.

". . . Where, however, it is plain that the record has been fully developed by depositions and affidavits on a motion for summary judgment, and such record demonstrates that, construing all of the facts and inferences to be drawn therefrom in favor of the party against whom the judgment is entered, he would not be entitled to have a jury verdict stand, we have not hesitated to hold that the grant of summary judgment is proper." (McLaney, supra, at 571-572).

As we interpret McLaney and the other federal cases cited, even under the special interlocutory appeal provisions applicable there, the important objective to be achieved is termination of unwarranted litigation. This objective obviously will not be accomplished here, even by a ruling favoring defendants, because the issue of "actual malice" would remain to be litigated in the trial court. Plaintiff would still be entitled to proceed, albeit under the "actual malice" standard of New York Times, rather than the negligence standard of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), applicable to defamation actions by private citizens.

Moreover, we are not persuaded, particularly in the absence of what we may reasonably consider to be authority on the point, that petitioners' First Amendment freedom is threatened by its uncertainty whether, pending a ruling on the public figure issue, it must be guided by the negligence standard of care of Gertz v. Robert Welch, Inc., supra, or whether they may indulge their reportorial enterprise under the more protective cloak of the New York Times "actual malice" standard. Further, as for petitioners' argument that they fear to publish, lest they furnish additional grist for plaintiff's litigation mill, we do not feel that this is an argument seriously to be considered. First, there would seem to be an equal likelihood of some attempt by plaintiff to Therefore, without suggesting what our jurisdictional decision might be in a case fully developed on both the "public figure" and the "actual malice" issues, we resist the invitation in this case to intervene in the conduct of this litigation. We have confidence that the able trial judge, in due course, will appropriately and correctly dispose of all issues properly before him. We add only that, as petitioners urge, the determination of the plaintiff's status as a "public figure" or "private person" apparently is one for the trial judge to make, while the issues of "actual malice", or negligence are ordinarily jury issues. ² See New York Times v. Sullivan, supra; Gertz v. Robert Welch, Inc., supra; Rosanova v. Playboy Enterprises, Inc., 411 F.Supp. 440 (S.D.Ga.1976), affirmed 580 F.2d 859 (5th Cir. 1978); Hoffman v. Washington Post Co., 433 F.Supp. 600 (D.C.D.C.1977); and Belli v. Orlando Dailey Newspapers,...