Grau v. Kleinschmidt

• Decision Date: 24 June 1987
• Docket Number: No. 86-581,86-581
• Parties: , 31 O.B.R. 250, 14 Media L. Rep. 1353 GRAU, Appellee, v. KLEINSCHMIDT, et al., Appellants.
• Court: Ohio Supreme Court

Page 84

31 Ohio St.3d 84

509 N.E.2d 399, 31 O.B.R. 250, 14 Media L. Rep. 1353

GRAU, Appellee, v. KLEINSCHMIDT, et al., Appellants.

No. 86-581.

Supreme Court of Ohio.

June 24, 1987.

Syllabus by the Court

1. When a trial court rules upon a defendant's motion for a directed verdict in a libel action brought by a public official, the court shall construe the evidence most strongly in favor of the party against whom the motion is directed in order to determine whether a reasonable jury could find from a totality of the circumstances the existence of actual malice with convincing clarity. (Scott v. News-Herald [1986], 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, --- A.L.R. 4th ----, followed; Dupler v. Mansfield Journal [1980], 64 Ohio St.2d 116, 18 O.O.3d 354, 413 N.E.2d 1187, followed and extended.)

2. If the trial court in ruling upon a defendant's motion for a directed verdict in a libel action brought by a public official finds from a totality of the circumstances that reasonable minds could only conclude that the plaintiff's evidence fails to demonstrate actual malice with convincing clarity, then the court shall sustain the motion and direct a verdict thereby entering judgment for the defendant. (Scott v. News-Herald [1986], 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, --- A.L.R. 4th ----, followed; Dupler v. Mansfield Journal [1980], 64 Ohio St.2d 116, 18 O.O.3d 354, 413 N.E.2d 1187, followed and extended.)

This cause arises as a result of a libel action filed by appellee, Paul A. Grau, the former law director for the city of Garfield Heights, against appellants, ¹ the Garfield Heights Leader, Inc. (hereinafter "Leader") and William E. Kleinschmidt, the publisher and editor of the Leader. The focus of the complaint centered upon events occurring in August 1981, during which time Grau served as the city's law director.

During this period, the city was embroiled in an acrimonious dispute over selecting a cable television franchise company to provide service for the city's residents, coupled with a hard-fought mayoral race. Appellee had been selected by city council to enter into negotiations with various cable companies. Eventually, appellee's negotiations with the Cox Cable Television Company solidified when Cox Cable met the city's conditions precedent for obtaining the franchise. In May 1981, Cox Cable drafted a check, made payable to the city of Garfield Heights in the amount of $100,000, with the reservation that the check not be cashed unless and until it was awarded the cable franchise. The check which represented a prepayment of the franchise fee was forwarded to Grau as the city's representative, as were insurance contracts, performance bonds and letters of credit. Discussions about a voter referendum for the selection of a cable franchise soon developed which engendered substantial political debate.

In August 1981, with the cable franchise issue still unresolved, the mayoral race between the incumbent Ted Holtz, and the challenger, Raymond A. Stachewicz, gained momentum. The cable franchise issue became a key factor in the mayoral race. On August 13, 1981, the Leader published a letter from Stachewicz ² questioning the manner in which the Holtz administration had handled the cable television franchise issue. The following week, the Leader published an open letter written by Neil E. Bowler, a former mayor of Garfield Heights, which sought to defend the current administration's handling of the cable franchise controversy. ³ Included within this letter was a statement that the $100,000 "check from Cox is drawn in favor of our Law Director and is not signed by him or even tried [sic ] to cash it!" Immediately following Bowler's letter there appeared an editorial note questioning, inter alia, why the cable company's check was drafted in Grau's name. ⁴

After Grau learned of the statements in Bowler's letter and the accompanying editorial comment, Grau telephoned Kleinschmidt stating that while he had received a check for $100,000 from Cox Cable, the check was made payable to the city and had been forwarded to him as an agent thereof. Grau indicated resentment toward the implication that he had acted improperly. At the conclusion of the conversation, Grau stated that he wanted Kleinschmidt to remedy the negative implications contained in the Bowler letter.

In the next issue of the Leader, dated August 27, 1981, appellant printed the following clarification:

"TO CLARIFY INFOR PLACED In a 'Letter To The Editor' last week, the $100,000 check sent to Garfield Hts. by Cox Cable was NOT in Paul Grau's name as so stated by a writer; Cox Cable sent in the check to comply with the rules provided in Ord. 20 which now must stand the support of the people to get cable franchise in Garfield Hts. for the next fifteen years. IF the referendum is passed, then City Council will start all over with providing Garfield Hts. with a cable company and set new guidelines, length of contract, etc."

The aforementioned correction appeared in the "Radar" column of the Leader, which the record demonstrates is one of the most widely read columns in the paper. Also appearing in the August 27, 1981 edition of the Leader was a front page article ⁵ entitled "Administration Creates 'Cablegate' " wherein Stachewicz accused Grau of "holding the [$100,000] check * * * in his name." This article was almost a total reprint of a campaign news release from Stachewicz. In the same edition there appeared a "letter to the editor" from Stachewicz again questioning, inter alia, the conduct of Grau and alleging his acceptance of a $100,000 check. ⁶ On September 4, 1981, counsel for appellee dispatched a letter to Kleinschmidt demanding both a "retraction and apology" for the articles printed in the August 27, 1981 edition of the Leader. When neither appeared, appellee initiated the within action for libel in the Court of Common Pleas of Cuyahoga County. At the conclusion of the presentation of the plaintiff's case, defendants sought and received a directed verdict. The court reasoned that, although the publications represented "shoddy" journalism, reasonable minds could reach but one conclusion--namely, that the plaintiff failed to demonstrate the existence of actual malice with convincing clarity. On appeal, the judgment of the trial court was reversed when the court of appeals concluded that upon the facts presented by plaintiff "a jury could reasonably find actual malice with convincing clarity."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Francis X. Reddy, Jr., Garfield Heights, for appellee.

Sheldon D. Schecter and David C. Eisler, Cleveland, for appellants.

WRIGHT, Justice.

This appeal presents two issues. First, the proper standard to be applied when a directed verdict is sought by the defendant in a libel action brought by a public official and second, whether the court of appeals erroneously overturned the directed verdict issued by the trial court.

I

We begin our analysis with a brief examination of the standard which applies to the underlying defamation proceeding. In New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the high court set forth a standard which "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." ⁷ Id. at 279-280, 84 S.Ct. at 725-726.

In subsequent decisions, the Supreme Court has emphasized that public officials may only recover damages for libel upon clear and convincing proof of actual malice, Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789; Buckley v. Littell (C.A. 2, 1976), 539 F.2d 882, certiorari denied (1977), 429 U.S. 1062, 97 S.Ct. 785, 786, 50 L.Ed.2d 777, with the focus being upon the defendant's attitude pertaining to the truth or falsity of the published statements, rather than any hatefulness or ill-will. See Herbert v. Lando (1979), 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115; Cantrell v. Forest City Publishing Co. (1974), 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419. Accordingly, the plaintiff bears the burden of demonstrating with convincing clarity that the publication of false statements was made with knowledge of their falsity, or with a "high degree of awareness of their probable falsity," Garrison v. Louisiana (1964), 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, or "that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson (1968), 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262. In determining whether a plaintiff has met this burden, it is important to consider the totality of the circumstances which led to the publication of the statements. See Scott v. News-Herald (1986), 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, --- A.L.R. 4th ----.

Recently, the Supreme Court has amplified its position previously set forth in New York Times Co. that, on appeal, libel cases involving public officials require heightened judicial scrutiny. Thus, in Bose Corp. v. Consumers Union of U.S., Inc. (1984), 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502, rehearing denied (1984), 467 U.S. 1267, 104 S.Ct. 3561, 82 L.Ed.2d 863, the court reasoned that "[a]ppellate judges in such a case must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." Id. at 514, 104 S.Ct. at 1967. This independent review of the record aids in protecting against " 'forbidden intrusion[s] * * * [into] the field of free expression' " and "assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge." Id. at 508...