Milkovich v. News-Herald, NEWS-HERALD

• Decision Date: 03 December 1990
• Docket Number: No. 13-009,NEWS-HERALD,13-009
• Citation: 70 Ohio App.3d 480,591 N.E.2d 394
• Parties: MILKOVICH, Appellant, v.et al., Appellees. *
• Court: Ohio Court of Appeals

Page 480

70 Ohio App.3d 480

591 N.E.2d 394

MILKOVICH, Appellant, v. NEWS-HERALD et al., Appellees. ^*

No. 13-009.

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided Dec. 3, 1990.

Brent L. English, Cleveland, for appellant.

Richard D. Panza, Lorain, for appellees.

FORD, Judge.

The lengthy odyssey of litigation between these parties began as a result of a sports column which appeared in the News-Herald. The column discussed the credibility of several witnesses at a hearing to enjoin the Ohio High School Athletic Association from barring the Maple Heights wrestling team from the 1975 state tournament. Appellant, Michael Milkovich, Sr., brought a libel suit against appellees, and the trial court found him to be a public figure and directed a verdict in appellees' favor.

On direct appeal this court of appeals reversed and remanded the action to the trial court. An appeal from our decision to the Ohio Supreme Court was denied certification. Upon remand, the trial court granted summary judgment in favor of appellees finding the article to be a constitutionally protected "opinion." This appellate court subsequently affirmed that ruling in October 1983; however, the Ohio Supreme Court overruled the finding that the column was constitutionally protected "opinion," in Milkovich v. News-Herald (1984), 15 Ohio St.3d 292, 15 OBR 424, 473 N.E.2d 1191, and remanded the cause to the trial court for a second time.

Prior to the Ohio Supreme Court's decision in Milkovich, supra, H. Don Scott, another witness mentioned in the article, who was then superintendent of the Maple Heights School District, also filed a libel suit against appellees. The trial court granted summary judgment against Scott.

The trial court's decision and this appellate court's affirmation in Scott v. News-Herald (Dec. 30, 1983), Lake App. No. 9-128, unreported, 1983 WL 6067, found the column to be constitutionally protected "opinion." When Milkovich was released in 1984 by the high court, it concluded that the article was not constitutionally protected, and thus an inconsistency resulted as the same article was being afforded different protections in the two cases. Scott, supra, was then reviewed by the Ohio Supreme Court, and the court overruled Milkovich, and found the column to be constitutionally protected "opinion" in Scott v. News-Herald (1986), 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699.

The Ohio Supreme Court in Milkovich had remanded the cause to the trial court ordering it to proceed under the analysis that Milkovich was a private person, and to apply the rule of law under Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co. (1984), 9 Ohio St.3d 22, 9 OBR 115, 457 N.E.2d 1164. During this second remand, both the trial court and this appellate court found in favor of appellees on the grounds that Scott, supra, determined the outcome of this case with regard to the issue of protected opinion. After the Ohio Supreme Court denied appellant's motion to certify, the United States Supreme Court entertained an appeal.

The United States Supreme Court reversed and remanded the Milkovich case to this appellate court, concluding that Scott misinterpreted federal constitutional law. Upon remand to this court, appellees have filed a motion for judgment in their favor.

In the second remand from the Ohio Supreme Court, the trial court granted summary judgment and this court affirmed, concluding that the trial court was, indeed, bound by the decision of Scott v. News-Herald, supra. Subsequently the United States Supreme Court in Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1, held that Milkovich v. News-Herald, supra, was still the law of the case, as it pertained to appellant's status as a public or private figure. The high court further held that language in Scott, supra, was obiter dictum and did not determine the issue of appellant's status as a public or private person.

Further, that court found error in the Ohio Supreme Court's interpretation of Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, stating that Gertz should not be interpreted to hold harmless certain statements as privileged "opinion," as the Ohio Supreme Court did in Scott, supra.

A careful reading of Scott does not support appellees' present position that nevertheless the Ohio Supreme Court held that, independent of the federal Constitution, the Ohio Constitution provided a privilege for "opinions" within its freedom of the press section. While it is true that the Ohio Supreme Court stated at Scott, supra, 25 Ohio St.3d at 244, 25 OBR at 303, 496 N.E.2d at 701, that "opinion" is protected by Section 11, Article I of the Ohio Constitution, in doing so, Scott relied solely on its own interpretation of federal law.

The United States Supreme Court expressly rejected this interpretation in Milkovich, supra, and there is little support for the contention that Scott can still stand for the proposition that the Ohio Constitution extends a privilege for "opinion." That court held that Scott lacked adequate state grounds which would preclude review. Although the majority of the Ohio Supreme Court in Scott initially recited the Ohio constitutional grounds, the court then proceeded to base its reasoning solely upon federal case law. Further, the concurrence of Justice Douglas also speaks only in terms of federal, not Ohio constitutional rights. Finally, and most convincingly, the dissent of...