IN the SUPREME COURT of OHIO LAVELLE SULLINS, Case No. 2013
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IN THE SUPREME COURT OF OHIO LAVELLE SULLINS, Case No. 2013-1543 Plaintiff-Appellee, On Appeal from the V. Cuyahoga County Court of Appeals, Eighth Appellate District RAYCOM MEDIA, INC. ET AL., Court of Appeals Case No. 99235 Defendants-Appellants. APPELLANTS WOIO, LLC AND'WUAB'S MOTION TO RECONSIDER DECISION NOT TO ACCEPT DISCRETIONARY APPEAL Joshua R. Cohen (0032368) Michael K. Farrell (0040941) Peter G. Pattakos (oo82884) Counsel of Record Cohen, Rosenthal, & Kramer, LLP Melissa A. DeGaetano (0080567) 700 West St. Clair Avenue Baker & Hostetler LLP The Hoyt Block Building, Suite 400 PNC Center Cleveland, Ohio 44113 lgoo E. 9th Street, Suite 3200 (216) 781-7956 (Telephone) Cleveland, Ohio 44114-3482 (216) 781-8o61(Facsimile) (216) 621-0200 (Telephone) Email: jcohenCcrklaw.com (216) 696-0740 (Facsimile) ppattakos@crkla,,v.com Email: [email protected] [email protected] Attorneysfor PlaintiffAppellee Lavelle Sullins Attorneys f .or Defendants-Appellants WVAB and WUrO, LLC George S. Crisci (ooo6825) Todd M. Ellsworth (00782o8) Daniel Thiel (oo82869) Zashin & Rich Co., L.P.A. 75 Public Square, Suite 650 55 Public Square, 4th Floor Cleveland, Ohin 44113 Cleveland, C}hio 44113 (216) 452-9144 (Telephone) (216) 696-4441 (Telephone) (216) 452-9144 (Fascimile) (216) 696=4618 (Facsimile) Email: [email protected] Email: [email protected] tmeC?zrlaw.com Attorney for Defendant-Appellant Pinpoint lt^dtri'„ • ,; „> -, ^ ,^,%,. Attorneys for Defendant-Appellant Cuyalioga County Crime Stoppers :;<-: . ^.,,t F ... ^.. '^; Pursuant to Supreme Court Practice Rule 18.o2(B)(1), appellants WOIO, LLC and WUAB ("WOIO") respectfully move this Court for reconsideration of its order declining jurisdiction in this case. The authority to reconsider allows the Court to "correct decisions which, upon reflection, are deemed to have been made in error." State ex rel. Shemo v. NfayfiEld Hts., 96 Ohio St.3d 379, 2oo2-Ohio-4905, 775 N.E.2d 493, at 115 (internal quotations omitted); S.Ct.Prac.R. 18.o2(B)(1). Here, plaintiffs brief in opposition to jurisdiction ("plaintiff's brief '), like the Eighth District's two opinions below, fundamentally mischaracterizes the broadcast itself and other record evidence. Likewise, all three writings contain confusing and often incorrect statements of the law. WOIO respectfully submits that this Court's decision to decline jurisdiction was influenced by these demonstrable inaccuracies. Reconsideration of jurisdiction here is important. If it stands, the Eighth District's decision would eviscerate two long-standing protections of the First Amendment: (i) that a plaintiff must produce clear and convincing evidence of each defendant's negligence in order to survive that defendant's motion for summary judgment; and, (2) that there must be a substantial difference betveen the defamatory sting of a published statement and the literal truth for that statement to be actionable - a distinction emphasized by the U.S. Supreme Court just this week. Air Wisconsin Airlines Corp. v. Hoeper, 517 U,S. _(2014) (slip opinion) ("materially false" statement is one that "'would have a different effect ori the mind of the reader from that which ... the truth would have produced"') (citations omitted). The Eighth District made these constitutional errors based. on a description of the broa^dcast that simply is not accurate and did. so without reference to the only evidence 2 in the record concerning WOIO's conduct or state of mind. Indeed, the only conclusion that can be reached from the Eighth District's two opinions is that it did not review the actual content of Episode 17 of the Warrant Unit, but instead simply accepted plaintiffs inaccurate characterization of it. The Eighth District's opinions contain no mention of the only evidence of WOIO's conduct and instead adopt as true plaintiffs lumping together of the evidence relating to three, entirely independent companies. These errors by the Eighth District violate WOIO's due process rights and its rights under the First Amendment. Moreover, the Eighth District's two opinions, which misstate and misapply the law, create corzfusion that will further erode publishers' First Amendment rights throughout Ohio. THE FACTUAL INACCURACIES IN PLAINTIFF'S BRIEF OPPOSING JURISDICTION AND THE EIGHTH DISTRICT'S OPINIONS Plaintiffs brief repeatedly cites to the Eighth District's opinion, rather than the record, for factual assertions. But this circular tactic proves nothing because the Eighth District itself relied on plaintiffs made-up characterizations of the facts and not the actual evidence in the record. 1. Plaintiff and the Eighth District Both Mischaracterize the Content of the Program. A complete copy of the Warrant Unit program at issue is in the record. Although the program is nearly thirty-minutes long, only five seconds of the program concern plaintiff. During those five-seconds, his image appears with the text: "Lavelle Sullins, 24 Years Old 5'6" 150 lbs, East 126th St. Garfield, Passing Bad Checks," while a narrator reads: "Lavelle. Sullins, Wanted, Passing Bad Checks."1 1(WOIO's App. in Sup. of Sum. Judgmt., at Tab 6.) 3 Quoting the Court of Appeals, plaintiff argues that the use of the plural form in that one statement depicts Sullins as a"`bad check artist' who habitually committed theft through this means." (Op. Br. at 14, citing Sullins v. Raycom Media, Inc., 8th Dist. Cuyahoga No. 99235, 2013-Ohio-353o at ¶ 3, 36-37.) However, "passing bad checks" is in fact the statutory title of the crime to which plaintiff pleaded guilty. See, R.C. § 2913.11- "Passing Bad Checks." The remaining statements discussed by plaintiff and the Eighth District are non- actionable statements of opinion or cannot reasonably be understood as being about plaintiff specifically. See, e.g., Gist v.1Vlacon County Sher%f,f's Dep't, 284 III.App.3d 367, 371-72, 671. N.E.2d 1154 (III.App.Ct.1996) (discussed infra, p. 9-1o). 2. Plaintiff and the Eighth District Both Mischaracterize WOIO's Role in the Program's Production. The etiidence shotiving that WOIO simply broadcast a finished program and. played no part in creating, editing or producing the program is undisputed. The only e,ddence concerning WOIO's decision to do so is that: At all relevant times, it was and is [WOIO's] understanding and belief that the information in the relevant portions of the relevant episode of "Warrant Unit" was taken directly and accurately from official information and records provided by the Cuyahoga County Sheriffs Office to defendant Crime Stoppers and/or Pinpoint Media [and WOIO] had no knowledge of any falsehood or inaccuracy in that information or any reason to doubt its truth.2 WOIO never saw the records Pinpoint saw or spoke to anyone in the Sheriff's office. Plaintiff does not dispute these facts. Instead, he tries to avoid them by lumping all of the defendants together in his briefing. In his opening brief to the Eighth District, z(WOIO's Res. to Int. No. 3.) 4 plaintiffs only specific reference to WOIO was to say that it was the station on which the program aired. This deficiency was so glaring, WOIO argued that plaintiff had waived his right to appeal WOIO's summary judgment verdict for failure to separately argue it. Plaintiff did not correct the omission and the Eighth District ignored it, choosing instead to repeat the same mistake. See, e.g., Sullins, 2013-Ohio-3530, t 5-7 25-29. 3. Plaintiff Misrepresents His Fugitive Status at the Time of the Program. Citing again to the Eighth District's opinion rather than anything in the record, plaintiff argues that he "indisputably was not a fugitive when Episode 17 aired." (Op. Br. at 3.) But, undisputed evidence in the record sho-vvs that several warrants were outstanding for plaintiffs arrest on the day the program aired.3 As the program explains, at any given time, there are over 20,000 people in AToi~theast Ohio that are fugitives in that outstanding Nvarrants exist for their arrest. Thus, in this context, plaintiff was in fact a fugitive. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I: In a multi-defendant defamation action, the plaintiff must produce clear and convincing e`=idence showing fault by each defendant - the U.S. and Ohio Constitutions prohibit courts from presuming fault on the part of one defendant based on evidence relating only to other defendants. Plaintiff concedes that "[t]he First Amendment undeniably requires plaintiffs to prove `fault' without the aid of any presumption when they sue a publisher or broadcaster for defamation." (Op. Br. at 6.) But plaintiff later claims that "[a] presumption of `fault' generally does arise in cases of defamation per se, constitutional considerations notwithstanding." (Op. Br. at 8 and.1.2 (citing Kanjuka v. Meta•ol7ealth 3(WOIO's App. in Sup. of Sum. Judgmt., at Tab lo (collecting certified records reflecting the then-outstanding warrants).) 5 Med. Ctr.,161 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920, ¶16 (8th Dist.)).4 This is the same incorrect statement of the law upon which the Eighth District based its initial opinion, and. it is flatly contrary to this Court's holding in Lansdowne v. Beacon Jourr2al Co., 32 Ohio St.3d 176, 18o-181, 512 N.E.2.d 979 (1987).5 Plaintiff then attempts to divert this Court's attention from what the Eighth District actually held to what the Eighth District said that it had held wllen it denied reconsideration. The Eighth District said that it found "genuine issues of material fact as to who, if anyone, bears responsibility for the defamatory depiction of Sullins." Sullins, 2013-Ohio-363o, at T 43. The Eighth District also later said that it had. "not presumed anything" regarding WOIO's fault. Sullins v.