Guam Federation of Teachers, Local 1581, of the American Federation of Teachers, a Corporation v. Alfred C. Ysrael, Also Known as Al Ysrael
492 F.2d 438
9th Cir.
1974
Check Treatment

*1 ting the demonstration aside meet test of the first

Schiaffo had, Processing, if he Data even he required meet the second test of

then coming zone interests to “within the * * * by protected the statute.” attempt con- An made meet

cluding only of enforce- means private I suit. ignores approach how shown specific providing for actions statutes for the Postal or instituted Service. plaintiff placed

Since the “zone proc- an inferential interest”

ess, inferences are since these based premises illicit there two minor —that govern- no in a enforcement commitment Congression- agency implied

mental al abuses exist which unchecked

governmental agencies entities or —the proffered syllogism analytically un- being invalid,

sound; reject- it must be

ed. plaintiff standing. I to lack

I would reverse the of the dis- complaint.

trict court and dismiss the TEACHERS,

GUAM FEDERATION OF FED LOCAL OF AMERICAN corpora TEACHERS, ERATION OF al., tion, Plaintiffs-Appellants, et YSRAEL,

Alfred C. as Al known Ysrael, Defendant-Appellee.

No. 73-1444. Appeals,

United States Court of

Ninth Circuit.

Feb. Shapiro, Guam, Agana,

David M. plaintiffs-appellants. Trapp, Gayle Trapp,

Howard G. Co., Agana, Guam, & for defendant- appellee. DUNIWAY, Before TRASK

WALLACE, Judges. Circuit *2 ing clarity which OPINION (Id. demands” standard DUNIWAY, Judge: Circuit 729). S.Ct. at Plaintiffs, Federation of the Guam plain We examined the (Union), offi- Teachers and seven it tiffs’ evidence and we that conclude cers for sue Ysrael libel. ease was permit jury mal to find “actual tried At the before a conclusion Times, ice” su as defined New York plaintiffs’ case, Ysrael moved pra, fa when viewed in the granted. verdict, a directed which was plaintiffs. vorable to the This is the Judgment entered for Ysrael. was viewing usual standard for the evidence appeal and we Plaintiffs reverse. is when a motion for a verdict directed appointed Ysrael was a member of grant involved. such a motion is When Guam Territorial School Board losing every ed, entitled Governor of strenu- Guam. The Union reasonable inference that ously opposed appointment Brady from the Southern evidence. v. developed public matter into a In row. Co., 232, Ry. 1943, 476, 64 320 U.S. it, the course of Ysrael caused various 239; 88 L.Ed. Shafer Mountain v. States offi- about the Union and its Co., Cir., 1964, 932; Tel. & Tel. F.2d ,to published newspa- cers a Guam Div., v. Girardi Gates Rubber Co. Sales per, Daily the Pacific News. Inc., Cir., These 196. appeal parties On this are rules are so well established to have agreement the Union and its offi- clichés. become “public officials,” cers are or at least testimony In this Ysrael’s figures” “public within the rationale of enough get an adverse witness is Sullivan, New York Times Co. v. plaintiffs jury the New to the under 84 S.Ct. 11 L.Ed.2d repeatedly York Times He standards. progeny, particularly 686 and its Curtis admitted that he did not know ¡ Publishing Butts, 1967, Co. v. 388 U.S. repeatedly what he said He was true. 87 S.Ct. 18 L.Ed.2d 1094. It nothing, admitted that he did or almost is not contended that the individual nothing, verify charges. his As to plaintiffs, though specifically not named statements, repeatedly his he ad- press statements, Ysrael’s are not sup- of no facts mitted that he knew group identifiable members of them; unspec- port upon relied he either which Ysrael referred. Rosenblatt upon nothing He ified rumor or at all. Baer, 383 U.S. 86 S.Ct. simply asserted that he believed 15 L.Ed.2d 597. It is not contended he an asser- what said was true. Such that at least some of Ysrael’s statements enough support tion not directed press to the are not It not libelous. were, in his If mere verdict favor. it contended that a swearing law, could, as a matter of de- they only question are false. The any feat action to which the is, plaintiffs were the entitled to have principles applicable. are See St. their cause to the on the issue Thompson, 1968, Amant v. of malice? malice, The test for laid down really dis- counsel does not Ysrael’s Times, supra,, New York repeat pute foregoing general propositions. edly applied progeny in its numerous argues they apply this He do not the statement must been type judge, case. The district is, “made with ‘actual malice ’ —that with granting the motion for a directed ver- knowledge that it was false or with'reck dict, position. took the same In disregard less of whether false order, written he said: (376 or not.” U.S. at 726) The court also ruled “Actual malice is a constitutional is- proof carry of malice must “the convinc- initially by sue to be decided the judge summary motions for malice has shown with vis-a-vis been ‘convinc- clarity.’ making Bon In and directed verdict. Inc., Hotel, credibility will Air supra. the court [sic] Cir., 1970, 426 F.2d the witnesses and 853] draw its own in- ferences from the If the evidence. In judgment, the Court permitted proceed, the court will wit- upon again will be called to make a nesses and draw its own *3 judgment on the actual malice issue from the evidence. at the close of of the all evidence.” publi- falsity or of . Truth a (Citations omitted.) and footnotes cation, however, is not the constitu- Judge Wright What was not said nec- The test is tional test. essary to decision, in because Wass- published must be summary erman the court a reversed knowledge falsity with actual of their judgment for the defendant and remand- disregard or with of their reckless ed “for on the issues of actual falsity. malice, possible defamation and dam- before, As noted mal- has been actual ages.” Judges However, we assume ice is a constitutional be de- issue to Wright gone and Robinson by termined a mo- on Judge Wright the exercise that tion for a directed verdict. describes. The Court has found from the evi- Wright’s Judge were views followed testimony of the witnesses dence— by Hotel, Fifth Bon Circuit in Air exhibits, and the admitted —that Time, Inc., Cir., 426 F.2d Inc. plaintiffs by have failed to establish sure, however, 864-865. We not are convincing a clear evidence just actually as to far how the court publish defendant did the statements legal position: It summarized went. knowledge or with actual of articles falsity disregard their or with reckless “Numerous courts have found sum- mary judgment as whether or not publishers proper it is false.” for genuine where the of devoid record is The views in involved the court's order issues fact as to whether al- Judge seem to have been stated first leged defamatory pub- statement was Skelly Wright concurring opin in J. knowledge with lished falsity actual its Inc., 1970, ion in Wasserman v. disregard or with a reckless U.S.App.D.C. whether it was true or false. Other Judge opinion 922-923, an in which courts, however, not a allowed Judge Wright’s po Robinson concurred. publisher’s summary judg- motion for is this: sition presented ment where facts were from my judgment “In New York Times Co. a which could find that a state- v. Sullivan makes actual a con- malice made with actual malice.” in stitutional issue be decided (Footnotes omitted.) judge apply- first instance language the Times test of actual knowl- We note that not edge disregard reweighing or reckless of the truth. a of the include including . Unless the court finds of witnesses: it pretrial affidavits, depositions merely basis of states rule the usual to be fol- documentary evidence, summary or other lowed is in- when plaintiff prove analysis can actual malice court’s the facts volved. 865-867) (pp. sense, it should It concludes: similar. summary judgment for defendant. are convinced that Bon Air “We has presented If the de- survives not issues from summary motion, fendant’s find that Time which plain- published at the trial court the article with actual close knowledge falsity must decide actual or with reck tiff’s case its disregard less as to whether or not unprotected, actual malice must shown was false.21” “convincing clarity.” with New York Times, supra, The footnote reads: 728-729. following “21. statement Judge McLaney [Time, Tuttle respect, However, with we are McLaney, Cir., persuaded phase the second pertinent Judge Wright’s analysis 565] seems here: in Wasserman * * * suggests which deciding these plain it is ‘Where motions, the trial court fully developed by record been has credibility of witnesses and draw depositions a mo- and affidavits the evidence. We summary judgment, tion for think that a libel other .that, con- such record demonstrates against cases, whom a motion struing infer- all of the summary judgment, a motion for a ences drawn therefrom fa- *4 verdict, judg directed or a motion for a against of the whom the vor judgment notwithstanding ment the. is verdict entered, is he would made is entitled to the evidence a verdict be entitled to have light in viewed the to favorable stand, hold have not hesitated to we prop him to and all inferences that can summary judg- grant that the of erly be in drawn favor trier his the proper.’ 406 F.2d at 571- think, of too, fact. We that in such cases 572.” duty judge, it is not not the of the language find hint in this that no We weigh appeal, or of this court of to the weigh credibility judge or to is to the credibility evidence, or to draw the give party in- the to benefit refuse a moving party in the inferences favor of legitimately can ferences that by be (except, course, contrary when no jury. However, court a the because legitimately drawn), inference can be Judge Wright’s quote from and did cite judge but that neither the nor this court opinion, in the we that court assume appeal weigh authority on the has to Judge exercise that went Wright among legitimate or to choose suggests. such cases. agree of the our brothers We with against which the evi- standard and Fifth Circuits District Columbia dence must be examined is of New important judges focus it is progeny. York Times But summary judgment, di- attention manner in which the to be evidence is judgment notwith- rected verdict and standing examined that standard procedures in libel verdict is the same in all other cases in which as may a cases When civil actions. chilling go claimed that a case should not Amendment on First effect jury. evidence, to the so consid- If the Thus, special appropriate. rights, care is ered, up the New York measures stages judicial at these a examination standard, case one for scrutinizing closely proceeding, of the and it a directed jury, error to to determine the evidence judge verdict, did in this as trial defend- against in a should be terminated case. favor, provides a buffer ant’s the authorities do We not think possible First Amendment interferences. Wright Judge relies sustain on which Supreme has instructed Court Denno, thesis. Jackson “examine for [themselves] courts to 1774, 12 L.Ed.2d S.Ct. the circumstanc- issue and evidence, admissibility deals with the they to see were made es under which weight very matter a different they a charac- are of . whether evi- given admissible be or credit First principles which the ter procedure that its It protect.” well dence. To be . . . Amendment finding ought a in libel eases—a review the State to be followed judge, court where a conclusion determination right sufficiently to be of law to a Federal and a record, articulated intermingled reviewing finding court, to wheth- of fact are helpful so ato necessary, as make it in order to presented sufficient plaintiff has er pass upon question, go jury. is a the Federal But that dence to Judge analyze Kansas, step cry the facts.’ Fiske v. next far from the change is, Wright take, 274 U.S. 385-386 S.Ct. [47 is to ex- 81 L.Ed. 1108]. in which the the manner Haynes Washington, 373 U.S. the evidence. amine 515-516 10 L.Ed. Baer, 1966, 383 U.S. Rosenblatt v. 2d 513].” deals nothing language evidence to indi- privilege- We with —whether public offi- cate that the Court’s disregard plaintiff to examination was shows the nothing says how the the usual rules for determin- about It cial. whether a case to the the evidence is to view requires merely It a reexamina- that determination. tion as to whether the viewed supra, In New favorably plaintiff, suf- Court 284-286, 84 ficient to meet the New York Times said: accepts if standard it. respondent may new seek a Subsequent “Since decisions seem to us to *5 considerations foregoing we deem that trial, bear out the In views. Rosen judicial re Baer, 1966, effective administration 75, 87, blatt 383 86 v. U.S. quire in the us to review the evidence 669, 677, 597, 15 L.Ed.2d after S.Ct. present holding record to determine whether fell the within constitutionally support a principles Times, York New the Court respondent. judgment This said: duty limited to Court’s “Moreover, even if the claim falls princi elaboration of constitutional within the record ples; proper cases we must also suggests respondent may able to make certain review the evidence present jury question of malice as principles been con those there defined.” stitutionally applied. . We There is reached no hint Court independent examina must “make an position by deciding this record,’ v. tion of the whole Edwards selecting per- of witnesses or between 229, Carolina, 235 South missible inferences. 683, 697], 680, S.Ct. Hill, 1967, In 385 v. U.S. so as to assure ourselves 391, 544, 374, at 534, at L.Ed. 17 judgment a for does not constitute 456, 2d the Court said: field of free bidden intrusion on the “Turning present to the facts of the expression.26” proofs reasonably sup- would footnote, And in a the Court commented finding port either a of innocent relationship on the between such an ex- merely negligent or misstatement right amination Life, finding portrayed or a that Life trial: play as a re-enactment of the Hill “26. The Seventh Amendment family’s experience reckless of the respondent preclude contends, not, knowledge truth with actual or an Court. such examination portrayal was false.” its on re-examina- But ban preclude Again, us from tion of does not we find no hint evi- governing weighed determining Judge Wright rules dence was weigh properly ap- up- of federal law have been it. Reversal was based plied on error in the facts. Court will instructions to the ‘[T]his Newspapers Hanks, Beckley 1967, In and the case v. is reversed proceedings. 81, 197, 19 L.Ed.2d is remanded for further U.S. 88 S.Ct. ground 248, the Court reversed Judge (concur- WALLACE, Circuit insufficiency but ring dissenting): sup nothing opinion there in the Judge Wright’s port con thesis. On the applied I concur merely trary, the Court held that wrong granted the standard when he proof present not “sufficient was I motion for a directed verdict. believe 200) jury question.” (p. 85, p. 88 S.Ct. majority opinion proper describes 1968, Thompson, St. Amant v. applied. However, standard to I 1323, 20 L. U.S. would remand the case allow the Metromedia, 262; Ed.2d Rosenbloom v. court to reconsider the motion Inc., 1971, guidelines first under es- instance 29 L.Ed.2d 296. opinion. tablished appeals do decisions Nor the court of Judge Wright support con-

cited Washington In Post Co.

clusions. Keogh, U.S.App.D.C. we no hint that the appeals court America, UNITED STATES credibility. Indeed, the as to Appellee, following purported apply court rule: al., Appellants. Vincent RIZZO et right by jury “First, to trial 385, 879, 450, 451, Nos. Dockets stake, courts must be ever careful so 73-2012, 73-2088, summary judgment when 73-2405, 73-2584. or no issue is controverted upon permissi- Appeals, turns a choice between United States Court undisputed Second Circuit. ble inferences (at 967.) dence.” Argued Dec. *6 Cir., Ginzburg, Goldwater Decided Feb. 1974. denied, 1970, cert. U.S. 10, 1974. Denied June Certiorari applies 337): (p. the normal rule 3069. “Viewing materials the submitted might the inferences which light ‘in favorable

from them the motion’, party opposing Diebold, Inc.,

United States v. L. (1962), the district court

Ed.2d

properly of fact that a trier concluded opportunity

should have the to decide ap appellants were liable

pellee.” Cir., Ragano, 5

So does Inc. v. plaintiffs’ present

In the favorable

dence, viewed them, to meet the is sufficient The case standard. gone