Hetherington v. Griffin Television, Inc.

• Decision Date: 30 March 1977
• Docket Number: No. CIV-76-0212-T.,CIV-76-0212-T.
• Citation: 430 F. Supp. 493
• Parties: Clark HETHERINGTON, Plaintiff, v. GRIFFIN TELEVISION, INC., an Oklahoma Corporation, and Vicki Monks, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

430 F. Supp. 493

Clark HETHERINGTON, Plaintiff, v. GRIFFIN TELEVISION, INC., an Oklahoma Corporation, and Vicki Monks, Defendants.

No. CIV-76-0212-T.

United States District Court, W. D. Oklahoma.

March 30, 1977.

COPYRIGHT MATERIAL OMITTED

Lankford & Dill, Inc., Norman, Okl., and Jack S. Dawson, Oklahoma City, Okl., for plaintiff.

Roy J. Davis of Andrews, Mosburg, Davis, Elam, Legg & Bixler, Oklahoma City, Okl., for both defendants.

MEMORANDUM ORDER OF REMAND

THOMPSON, District Judge.

The plaintiff brought this action seeking damages for libel in the Oklahoma State District Court in Cleveland County, Oklahoma. It was removed here by the defendants and the plaintiff has filed a Motion to Remand.

The plaintiff is a local businessman. Defendant Griffin Television, Inc. operates Channel 9 KWTV Television Station in Oklahoma City. Defendant Vicki Monks is a reporter and broadcaster at the television station. The plaintiff alleges that the defendants, acting in concert, composed and publicly broadcast false and defamatory matter over KWTV Television Station on the six o'clock and ten o'clock news programs on June 30, 1975. The plaintiff has attached a transcript of these broadcasts to his petition as "Exhibit A". The petition states that the defendants made additional false and defamatory statements in a news broadcast on July 1, 1975, the text of which is attached to the petition as "Exhibit B".

The defendants assert that removal is proper under 28 U.S.C. § 1441(b) and 28 U.S.C. § 1443. In regard to section 1441(b), the defendants maintain that the construction of a federal statute will form an essential part of the determination of the truth of the broadcast statements and therefore this is a case or controversy arising under the Constitution or laws of the United States. The defendants also claim that their civil rights under the First and Fourteenth Amendments to the United States Constitution are in jeopardy and that this Court should assume removal jurisdiction under 28 U.S.C. § 1443.

Federal Question

For removal to be proper under 28 U.S.C. § 1441(b), there must be present in the case a federal question within the meaning of 28 U.S.C. § 1331. Therefore, to be removable, the case must be one arising under the Constitution or laws of the United States. To so arise a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Seneca Nursing Home v. Kansas State Bd. of Social Welfare, 490 F.2d 1324 (10th Cir. 1974); Denver Union Stock Yard Company v. Litvak Meat Company, 295 F.Supp. 809 (D.Colo.1968); and Gray v. Oklahoma Land & Cattle Co., 240 F.Supp. 646 (N.D.Okl. 1965). The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they are given another. Gully v. First National Bank, supra; Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); and United Gas Pipeline Company v. Brown, 207 F.Supp. 139 (E.D.La.1962). A genuine and present controversy, not merely a possible or conjectural one, must exist with reference to the construction of the right or immunity. Gully v. First National Bank, supra; Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 56 L.Ed. 1205 (1912); State of Okl. ex rel. Wilson v. Blankenship, 447 F.2d 687 (10th Cir. 1971); Chambers-Liberty Counties Nav. Dist. v. Parker Brothers & Co., 263 F.Supp. 602, 606 (S.D. Tex.1967). The controversy must be disclosed upon the face of the complaint, unaided by the answer or the petition for removal. Gully v. First National Bank, supra; Crow v. Wyoming Timber Products Co., 424 F.2d 93 (10th Cir. 1970); Ashley v. Southwestern Bell Tel. Co., 410 F.Supp. 1389 (W.D.Tex.1976); and Columbia Pictures Corp. v. Town Theatre Corp., 282 F.Supp. 467 (E.D.Wis.1968).

Matters which are asserted, or which are anticipated to be asserted, in defense to the plaintiff's cause of action are not to be considered in determining federal question jurisdiction. In fact, the complaint or petition will not be looked to for the establishment of a basis of jurisdiction to the extent it goes beyond a statement of the cause of action and anticipates and meets in advance a probable defense.¹ Gully v. First National Bank, supra; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Lovely v. Laliberte, 498 F.2d 1261 (1st Cir. 1974); and Gardner v. Clark Oil & Refining Corp., 383 F.Supp. 151 (E.D.Wis.1974).²

An understanding of the import of the words "arising under" is highly important in determination of federal question jurisdiction. The substantive law which creates or gives rise to the cause of action is what law the case or controversy arises under. American Well Works Co. v. Layne and Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916); Tennessee v. Union & Planters' Bank, 152 U.S. 454, 462, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Bailey v. Logan Square Typographers, Inc., 441 F.2d 47 (7th Cir. 1971); and Andersen v. Bingham & G. Ry. Co., 169 F.2d 328 (10th Cir. 1948).

In American Well Works Co. v. Layne and Bowler Co., supra, the United States Supreme Court, speaking through Mr. Justice Holmes, held:

"A suit for damages to business caused by a threat to sue under the patent law is not itself a suit under the patent law. And the same is true when the damage is caused by a statement of fact, — that the defendant has a patent which is infringed. What makes the defendant's act a wrong is its manifest tendency to injure the plaintiff's business; and the wrong is the same whatever the means by which it is accomplished. But whether it is a wrong or not depends upon the law of the state where the act is done, not upon the patent law, and therefore the suit arises under the law of the state. A suit arises under the law that creates the cause of action. The fact that the justification may involve the validity and infringement of a patent is no more material to the question under what law the suit is brought than it would be in an action of contract."³

The case of Andersen v. Bingham & G. Ry. Co., supra, involved an automobile-train collision wherein the plaintiff claimed as one ground of negligence that the defendant had violated section 1 of the Safety Appliance Act, as amended, 45 U.S.C. § 1. The defendant sought removal arguing that the case was one arising under the Safety Appliance Act and there was the requisite amount in controversy. The court concluded that although the Act established a duty and created correlative rights in favor of injured persons, actions to enforce those rights arose either under the statutory or common law of the state. It was held in Pan Am. Corp. v. Superior Court, 366 U.S. 656, 663, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961) and Denver Union Stock Yard Company v. Litvak Meat Company, supra, that a state court action brought on contract will not be made removable merely by the existence of a scheme of federal regulation which will affect the validity of the contract, or some provision thereof.

Upon close examination, the plaintiff's petition does not set forth a cause of action arising under the Constitution or laws of the United States. What the petition does set forth is a common law cause of action for defamation or libel.⁴ The common law of libel and slander has been codified by the Oklahoma Legislature at 12 O.S.1971 §§ 1441 through 1447.5. It is this Oklahoma law which gives rise to a cause of action for libel. The plaintiff's action is therefore one arising under Oklahoma law.

The defendants allege that the plaintiff's case turns upon a construction of 8 U.S.C. § 1324.⁵ The defendants state in their brief and response to the plaintiff's Motion to Remand that the plaintiff's "claim for recovery is based upon being falsely accused of a felony offense under federal law in the employment of illegal aliens." The defendants also assert, "It is plaintiff's burden to prove falsity and that burden will be determined by construction of the federal law . . .".⁶

Contrary to the defendant's assertion, truth is an affirmative defense. The burden of proving truth rests upon the defendant.⁷ 12 O.S.1971 §§ 304 and 1444. Martin v. Griffin Television, Inc., 549 P.2d 85 (Okl.1976), and Dawkins v. Billingsley, 69 Okl. 259, 172 P. 69 (1918). The elements of the plaintiff's case involve showing what the defamatory matter was, that it was broadcast, published or spoken of the plaintiff, the failure of the broadcaster to exercise ordinary care and that damage flowed from the defamatory broadcast. 12 O.S. 1971 §§ 303 and 1444. Martin v. Griffin Television, Inc., supra. Additionally, the plaintiff's case would include the showing of actual malice in support of any effort to recover presumed damages or punitive damages. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

It is undeniable that the federal law, which establishes a criminal penalty for the harboring of aliens illegally in this country, will play an important role in the trial of this case. In every libel case where one party has imputed the commission of a crime to another and the imputing party chooses to defend by showing the truth of the statement, the language of the criminal statute must be read in light of the actions of the party to whom the crime has been imputed.

None of the briefs in this case show how the plaintiff would read 8 U.S.C. § 1324 any differently than would the defendants. It appears that there is more of a factual controversy concerning whether the plaintiff's acts constitute a violation of this section than a legal question involving the true meaning of the statute. The federal question which would form the basis for removal jurisdiction must be a question of law—not of fact. Chambers-Liberty Counties Nav. Dist. v. Parker...