THE STATE OF SOUTH CAROLINA
In The Supreme Court

APPEAL FROM BERKELEY COUNTY
Court of Common Pleas

R. Markley Dennis, Jr., Circuit Court Judge
Deadra L. Jefferson, Circuit Court Judge
Roger M. Young, Circuit Court Judge

Opinion No. 4148 (S.C. Ct. App. filed Aug. 14, 2006)

Robert William Metts Petitioner,

v.

Judy Mims, Berkeley Independent Publishing Company, Inc.
dlb/a The Berkeley Independent and Summerville Communications,
Inc. dlb/a The Goose Creek Gazette Defendants.

Of whom Berkeley Independent Publishing Company, Inc.
d/b/a The Berkeley Independent and Summerville Communications,
Inc. d/b/a The Goose Creek Gazette are  Respondents.

BRIEF OF PETITIONER

 

Stephen F. DeAntonio
DeAntonio Law Firm, LLC
P.O. Box 815
Charleston, SC 29402
(843) 577-8080

E. Paul Gibson
Riesen Law Firm, LLP
P.O. Box 40997
Charleston, SC 29423-0997
(843) 760-2450
Attorneys for Petitioner

TABLE OF CONTENTS

Table of Authorities . i
Statement of Issues on Appeal I
Statement of the Case 2
Facts 4
Arguments 11
  1.  THE COURT OF APPEALS ERRED IN FAILING TO FIND THAT THE CIRCUIT COURT LOST JURISDICTION TO RULE ON THE SUMMARY JUDGMENT MOTION WHEN THE APPEAL HAD ALREADY BEEN PERFECTED BY BOTH PARTIES 11
  2. THE COURT OF APPEALS ERRED IN AFFIRMING THE CIRCUIT COURT’S HEARING THE NEWSPAPER DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AFTER IT INITIALLY HELD THE SAID MOTION IN ABEYANCE PENDING THE RESOLUTION OF THE CONTEMPT ORDER ON APPEAL, WHEN THE CLERK HAD SO ENTERED SUCH AN ORDER, AND WHEN THE CONTEMPTUOUS PARTY HAD YET TO RESOLVE THE CONTEMPT FOR A WILLFUL AND INTENTIONAL VIOLATION OF A COURT ORDER TO PRODUCE DOCUMENTS 12
  3.  THE COURT OF APPEALS ERRED IN FAILING TO ADDRESS AND IMPOSE SANCTIONS ON THE NEWSPAPER DEFENDANTS WHO WERE FOU1~~ID TO BE IN CONTEMPT OF COURT AFTER ADMITTING THEY WILLFULLY AND INTENTIONALLY IGNORED THE COURT’S ORDER TO PROVIDE DISCOVERY DOCUMENTS AND WHEN THEY DID NOT REQUEST REVERSAL OF CONTEMPT 18
  4. ASSUMING ARGUENDO THAT THE SUMMARY JUDGMENT MOTION WAS PROPERLY BEFORE THE CIRCUIT COURT, THE COURT OF APPEALS ERRED IN AFFIRMING SUMMARY JUDGMENT WHEN THERE WAS CLEAR AND CONVINCING EVIDENCE OF NEW YORK TIMES V. SULLIVAN MALICE, AND THE PRINCIPLES OF ANDERSON V. AUGUSTA CHRONICLE DICTATED THE MATTER BEING SUBMITTED TO THE JURY  19
Conclusion 27
       

TABLE OF AUTHORITIES

CASES

       
Anderson v. The Augusta Chronicle, 365 S.C. 589,  
  619 S.E.2d 428 (2005) 18,19,23,24,26
       
Baughman v. American Telephone & Telegraph Co., 306 S.C. 101,  
  410 S.E.2d 537 (1991)  19
       
Bowman v. Richiand Memorial Hosp., 335 S.C. 88,  
  515 S.E.2d 259 (Ct. App. 1999)  14
       
Campbell v. Justices of Superior Court, 187 Mass. 509,  
  73 N.E. 659 (1905) 15
       
Curtis Publishing Co. v. Butts, 388 U.S. 130,  
  18 L.Ed.2d, 1094 1 Media L. Rep. 1568 (1967) 12, 21,26
       
DuPont v. DuPont, 34 Del. Ch. 267, 103 A.2d 234 (1954)  15
       
Durlach v. Durlach, 359 S.C. 64, 596 S.E.2d 908 (2004) 17
     
Gilbert v. Arnold, 30 Md. 29 (1869) 15
       
Harte-I-Ianks Communications, Inc. v. Connaughton, 491 U.S. 657,  
  109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)   20,21,22,24,25
       
Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635,  
  60L.Ed2dII5(1979) 12,23,24
       
Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502,  
  506 S.E.2d497 (1998) 26
       
In Re Guardianship of Melissa W., 96 Cal. App. 4th 1293,  
  118 Cal. Rptr.2d 42 (2002) 15
       
Jarrell v. Petoseed Co., Inc., 331 S.C. 207,  
  500 S.E.2d 86 (S.C. App. 1998) 18
       
Long v. McMillan, 86 S.E. 2d 477, 226 S.C. 598 (1955) 17
       
Momsen-Dunnegan-Ryan Co. v. Placer Syndicate Mining Co.,  
  41N.M.525,71P.2d1034(1937) .15
       
New York Times v. Sullivan, 376 U.S. 254,  
  84 S.Ct. 710(1964) 18,25
       
Skirven v. Skirven, 154 Md. 267, 140 A. 205,  
  56A.L.R.697(Ct.App. 1928) 15
       
Southern Contracting, Inc. v. H.C. Brown Construction Co., Inc.,  
  317 S.C. 95, 450 S.E.2d 602 (Ct. App. 1994) 19
       
St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323,  
  20 L.Ed2d 262 (1968) 20,21,24
       
State v. Kennerly, 503 S.E.2d 214, 331 S.C. 442 (S.C. App. 1998), rehearing denied, and  
  certiorari granted, affirmed,
524 S.E.2d 837, 337 S.C. 617 (1999) 
18
       
State ex ret. McLeod v. Hite, 272 S.C. 303,  
  251 S.E.2d 746 (1979) 17
       
Stevens v. Sun Publishing Company, 270 S.C. 65, 240 S.E. 2d 812, cert. denied, 436 U.S. 945, 98 S.Ct. 2847,  
  56 L.Ed. 2d 786 (1978) 22,23,26
       
Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958  
  47 L.Ed.2d 154, 1 Media L.Rep. 1665 (1976) 26
       
Upchurch v. Upchurch, 367 S.C. 16, 22-23,  
  624 S.E.2d 643, 646 (2006)  13
       
OTHER AUTHORITIES
Media Libel Law 2004-2005, MLRC 50-State Survey 12
S.C.R.C.P. 26 12
S.C.A.C.R. 205 10,11

11
STATEMENT OF ISSUES ON APPEAL

THE COURT OF APPEALS ERRED IN FAILING TO FIND THAT THE CIRCUIT COURT LOST JURISDICTION TO RULE ON THE SUMMARY JUDGEMENT MOTION WHEN THE APPEAL HAD ALREADY BEEN PERFECTED BY BOTH PARTIES.

II. THE COURT OF APPEALS ERRED IN AFFIRMING THE CIRCUIT COURT’S HEARING THE NEWSPAPER DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AFTER IT INITIALLY HELD THE SAID MOTION IN ABEYANCE PENDING THE RESOLUTION OF THE CONTEMPT ORDER ON APPEAL, WHEN THE CLERK HAD SO ENTERED SUCH AN ORDER, AND WHEN THE CONTEMPTUOUS PARTY HAD YET TO RESOLVE THE CONTEMPT FOR A WILLFUL AND INTENTIONAL VIOLATION OF A COURT ORDER TO PRODUCE DOCUMENTS.

III. THE COURT OF APPEALS ERRED IN FAILING TO ADDRESS AND IMPOSE SANCTIONS ON THE NEWSPAPER DEFENDANTS WHO WERE FOUND TO BE IN CONTEMPT OF COURT AFTER ADMITTING THEY WILLFULLY AND INTENTIONALLY IGNORED THE COURT’S ORDER TO PROVIDE DISCOVERY DOCUMENTS AND WHEN THEY DIDN’T REQUEST REVERSAL OF CONTEMPT.

IV. ASSUMING ARGUENDO THE SUMMARY JUDGMENT WAS PROPERLY BEFORE THE CIRCUIT COURT. THE COURT OF APPEALS ERRED IN AFFIRMING SUMMARY JUDGMENT WHEN THERE WAS CLEAR AND CONVINCING EVIDENCE OF NEW YORK TIMES V. SULLIVAN MALICE, AND THE PRINCIPLES OF ANDERSON V. AUGUSTA CHRONICLE DICTATED THE MATTER BEING SUBMITTED TO THE JURY.

STATEMENT OF THE CASE

On September 29, 2003, Robert Metts [“Petitioner” or “Metts”] brought this action in the Berkeley County Court of Common Pleas. An answer was filed by Berkeley Independent Publishing, Inc. dJb/a The Berkeley Independent and Summerville Communications d/b/a The Goose Creek Gazette [“Respondents” or “the Newspapers”] on October 17, 2003. On August 3, 2004, Metts filed an Amended Complaint which was answered by the Newspapers on August 16, 2004.

On April 28, 2004, Petitioner served Respondents with First Supplemental Requests for Production for financial information. (App. p. 73) Respondents objected. (App. pp. 79-80, ¶ 3-6) Petitioner filed a Motion to Compel the financial information. A hearing was then held before the Honorable Deadra L. Jefferson on August 25, 2004. Judge Jefferson issued an Order compelling the Newspapers to produce their financial documents. (App. p. 17) A Motion to Reconsider, filed on September 3, 2004, was denied. (App. p. 66) An Amended Order reflecting the same was filed on October 26, 2004. (App. p. 15) Petitioner again requested the financial information from the attorney for Respondents. (App. p. 483) Again, Respondents failed to produce the documents despite repeated requests. (App. p. 482, p. 479) After Respondents disregarded the Order, Petitioner filed a Motion for Contempt and for Sanctions. At a hearing before the Honorable R. Markley Dennis on March 8, 2005, Respondents were held in contempt. (App. p. 207, line 16) The rulings were reflected in a form order filed the same date with a formal order to follow to be prepared by counsel for the Respondents. (App. p. 19)

Respondents had previously filed a motion for summary judgment on the defamation action on the basis that Petitioner had not demonstrated the actual malice standard required for a public ofticial. Petitioner had requested as an alternate sanction to strike the answer of the contemptuous Respondents, that their motion for summary judgment be stricken. The trial court imposed no sanctions, but orally held the summary judgment motion in abeyance. This latter ruling was reflected in the aforesaid form order. It was at the same hearing before Judge Dennis on March 8, 2005 that Petitioner was held to be a public official as a matter of law.

After the oral rulings, the attorney for the Respondents began writing the hearing judge to incorporate into his proposed order that the summary judgment motion be heard. (App. p. 478) On April 7, 2005, the clerk of court instructed the parties to ignore the form order dated March 8, 2005 that indicated the summary judgment motion was to be held in abeyance. (App. p. 20) Over protests and objections by the Petitioner, (App. p. 477, p. 474, pp. 501-502, p. 470), the Circuit Court ultimately issued a formal order declaring Respondents in contempt and that the summary judgment motion could be heard after all. (App.. pp. 11-12) Respondents appealed the Order of Judge Dennis on May 27, 2005. The Petitioner cross-appealed on June 2, 2005. This Order was hand-delivered by the Honorable Roger M. Young to the parties at the summary judgment hearing set by Judge Young and heard on April 29, 2005.(App. p. 127 line 14, p. 128 line 9) Judge Young took the matter under advisement. Respondents appealed the Order of Judge Dennis on May 27, 2005. The Petitioner cross-appealed on June 2, 2005.

An Order dated June 20, 2005, followed the filing of Notices of Appeal by all parties. In that Order, Judge Young granted summary judgment. On June 30, 2005, Petitioner timely filed Motions pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure for reconsideration and to amend the Court’s prior order granting summary judgment. After these motions were denied on July 1, 2005, Petitioner filed an appeal of Judge Young’s Order on July 13, 2005. All the appeals are consolidated and briefed together. On August 14, 2006, the Court of Appeals filed its Opinion in favor of the Respondents. Robert William Metts v. Judy Mims, et al., Op. No. 4148 (S.C. Ct. App. filed August 14, 2006). (App. p. 617) Petitioner filed tbr a rehearing which was denied by a split decision pursuant to the Court’s Order dated September 20, 2006. (App. p. 640)

Petitioner filed a Writ of Certiorari on October 18, 2006. The Supreme Court of South Carolina granted the Petition for Writ on August 9, 2007.

FACTS

The Evidence Presented at the Hearings for Motions to Compel, for Contempt and Sanctions, and for Summary Judgment

I. The Defamation

Robert William Metts was an employee of Berkeley County. His official title was Deputy Assistant Administrator. (App. p. 36 ¶1.) His supervisor was the county administrator, Jim Rozier.

On July 30, 2003, Respondents Berkeley Independent Publishing Company, Inc. and Summerville Communications Company, Inc., published a story in their newspapers, The Berkeley Independent and The Goose Creek Gazette, that county employees had been performing work in private yards and questioned whether this activity was legal. (App. pp. 37-38, ¶7) Included in the story was an allegation by Defendant Judy Mims, an elected member of the Berkeley County Council, “that a constituent called to tell her about seeing county trucks in Robert Mett’s driveway in Pinopolis, and employees cutting limbs from trees in his yard.” (k.) The story communicated Metts was utilizing the employees without paying the county a fee for the services provided. (k.) Respondents admitted in court that the statement regarding Metts was not true. (App. p. 129, lines 18-24) Metts had in reality hired a private company to perform work in his yard. (App. p. 382, lines 13-16)

After Metts complained and told Respondents the statements were fabricated, untrue, and a “bold-faced lie” (App. p. 39, ¶11), The Berkeley Independent published a piece entitled “Correction” that allowed Defendant Mims to change her statement to there having been only county trucks seen in the yard, but no sight of workers cutting limbs. (App. pp. 37-38, ¶7, App. p. 486) However, since the statement again communicated that Petitioner was receiving an improper benefit from county employees, a known false statement, it operated as a republication of the original defamation. A “correction” was never printed in The Goose Creek Gazette. (App. p. 39, ¶11)

Mims thought at any time county employees performed work on private property, whether for a fee or no fee, that it was illegal and wrong. (App. p. 403, lines 11-23.) Anybody caught doing such a thing, according to Mims, should go to jail. (App. p. 404, lines 3-16) The reporter and editor of the story, Linda Ensor, agreed that the story suggested that the work performed at Mr. Metts’ house was not paid for. (App. p. 290, lines 13-24)

Between 8,300 and 8,500 issues of the July 30, 2003 Berkeley Independent were circulated. Between 11,000 and 11,200 issues of the July 30, 2003 Goose Creek Gazette were circulated. (App. pp. 75-76) The Petitioner produced in discovery the names of at least 244 readers in whose eyes Plaintiff was defamed. (App. pp. 103-108)

Julie Jordan Metts, wife of Petitioner, testified that a neighbor thought Ms. Metts “would be upset over the article saying that [her] husband had used county employees and vehicles to do [their] landscaping.” (App. p. 355, depo p. 9, line 2 - p. 10, line 11) Ms. Metts testified that the articles “listed the folks who did pay for it, and his name (Mr. Metts) was not on the list.” (App. p. 355, depo p.10, lines 15-18) Ms. Metts testified that the articles alluded to the fact that the couple had used county landscapers and not paid for them, which would not be right. (App. p. 355, depo p. 10, line 23 - depo. p. 11, line 21) Her supervisor at work relentlessly quizzed her about the article. (App. pp. 358, 359, depo p. 21, line 15—depo p. 26, line 23) Helen Metts, the Petitioner’s mother, testified that she

remember[s] distinctly talking at the table at my mom and dad’s about it. She is 87, and he is 85. They just could not believe, they were dumbfounded, that something like that could be put in the paper.

(App. p. 337, depo p. 18, lines 2-6) The Petitioner’s mother also testified that people at church mentioned the article to her. (App. p. 338, depo p. 21, lines 6-13)

Mims made these allegations while visiting Respondents to place advertisements for her business late in the morning. (App. p. 413, lines 4-5) After speaking with the editor of the newspaper, Mirns approached Ensor. (App. p. 413, lines 5-6, p. 414, lines 5-7) Mims has been a political adversary of the Plaintiff’s immediate boss. (R. pp. 449-465) It is common knowledge that Ms. Mims is not on good terms with Mr. Rozier or Mr. Metts. (App. p. 329, lines 8-18) Metts believes Mims falsely planted a newspaper story concerning him to intentionally harm the Plaintiff and Mr. Rozier. (App. p. 500, lines 24-25, p. 383, lines 1-6)

Metts confronted Mims about why she planted a false story, and Mims replied that Jim Rozier had corrupted him. (App. p. 391, lines 14-19) This was the first time Ensor used Mims as a source, and she has not used her as a source since.

Claudette Lusk told Mims at her real estate office that she saw a truck in Robbie’s yard, but did j~ tell Mims it was a county truck. (App. p. 327, lines 19-25) Yet, Mims reported to Ensor that county trucks were in Robbie’s yard. (App. p. 416, line 10—p. 419, line 3) No witnesses have confirmed they informed Mims that county employees were performing work in his yard.

Ensor acknowledged that the fundamentals of writing a story and reporting include (1) checking your facts (App. p. 278, lines 21-24); (2) getting both sides of the story (App. p. 279, line 1); and (3) checking sources (App. p. 279, lines 4-5). Ensor did none of these. With respect to the article regarding Robbie Metts, she admits she did not check the facts. (App. p. 280, lines 8-16) She did not have both sides of the story. (App. p. 280, lines 17-24) Importantly, the reporter was waiting all day for a list of employees who had received and paid for county work. (App. p. 282, lines 4-23) Most striking is that when she got it, Ensor immediately noticed Robbie Metts’ name was not on it but made no inquiry into that fact. (App. p. 284, lines 7-18, p. 492) The reporter acknowledged the list conflicted with what she had been told by Mims, but made a conscious decision to go ahead and allow the story to run. (App. p. 285, lines 2-9) The list was published with the articles. (App. p. 484)

Ensor could have made changes in the substantive story but her excuse was that she was under pressure to get the paper to press on time. (App. p. 285, lines 10-17) Mims had come to her office and told her about Robbie Metts at about 11:30 that morning. (App. p. 285, line 24—p. 286, line 4) This was the first time she had used Ms. Mims as a source. (App. p. 287, lines 10-25, p. 288, lines 1-7) Ms. Ensor cannot testify she attempted to reach Metts that day. (App. p. 289, lines 14-22) Significantly, Ensor was aware of the adversarial relationship between Mims and Rozier and that Metts worked for Rozier. (App. p. 291) The reporter did not take notes. (App. p. 292, lines 17-18)

Ensor did not follow her principles of writing and reporting to check sources. She did not ask Mims who the “constituent was” who said there were county trucks in Robbie’s yard. (App. p. 293, lines 6-21) Also, within the same conversation, Mims had told her that it was one constituent as well as several constituents who told her this. (App. p. 294, line 14—p. 295, line 3) No inquiry was made. There was time to remove the portions about Robbie Metts in the article. (App. p. 295, lines 12-19) The paper went to press on July28 for the July 30 edition at 7:00 p.m., but it had previously been to press later than 9:00 p.m. (App. p. 296, lines 11-18) She could have stopped the presses and insisted upon a change. (App. p. 296, lines 19-22) The weekly on Monday prints overnight and is distributed on Tuesday and Wednesday. (App. p. 297, lines 3-13) There was no upcoming event to render the matter “hot news.”

2. The Contempt

The origin of the Respondents’ contempt centered on their refusal to produce financial documents the Petitioner requested to fulfill the constitutional requirement of showing a Defendant’s ability to pay a punitive damage award. On August 25, 2004, the Honorable Deadra Jefferson granted Metts’ Motion to Compel the Newspaper Defendants’ to produce financial documents. The Respondents had previously responded in discovery to the requests for production of financial documents this way:

Newspaper Defendants refuse to produce any financial data at this stage of the litigation without a (‘ourt ordering the production. The chance of this action going to a jury on actual or punitive damages is remote from the current information available to newspaper Defendants.

(App. pp. 79-80, ¶ 3-6) (italics added). Even though an Order was issued, Respondents did not comply with their own statement.

No motion for protective order was filed. The Circuit Court granted the Motion and ordered that the information provided be held confidentially and that it not be disseminated for any purpose other than the litigation. (App. p. 258, lines 10-15) Counsel for Petitioner also agreed to return the financial information upon conclusion of the case. (App. p. 262, lines 5-10) The items ordered to be produced were all income statements, statements of cash flow and statements of retained earnings of the companies owning the Newspaper Defendants, the Summerville Communications Company, Inc. and Berkeley Independent Publishing Company, Inc. (App. p. 263)

After the granting of the motion, counsel for Petitioner requested from counsel for Respondents the financial documents in letters dated August 30, 2004, October 28, 2004 and November 1, 2004, pursuant to Judge Jefferson’s Order. (App. p. 479, pp. 482-483) After the Respondents refused to comply with the Circuit Court’s order despite the statement in the responses that the documents would be produced upon procurement of an order, a motion for contempt and for sanctions was filed. Respondents presented no evidence. Petitioner provided correspondence from counsel for the contemnor demonstrating the wilful nature of the disobedience.

Newspapers do not cotton to any branch of the government trying to run roughshod over them. If they fail to do what is right, and instead, do what is expedient, or if they don’t fight back against senseless government actions, they may as well close their doors.

The expedient thing to do in this case would be to ignore a ruling that denies common and legal sense and deliver the financial statements.

The ruling makes no sense.

You will not be happy when you see the net worth of the newspapers.

That is why this is simply a matter of principal (sic) and do we succumb to a government ruling that makes no sense.

(App. pp. 480-481) The Respondents did not request the Court of Appeals to reverse the contempt finding.

ARGUMENT

I. THE COURT OF APPEALS ERRED IN FAILING TO FIND THAT THE CIRCUIT COURT LOST JURISDICTION TO RULE ON THE SUMMARY JUDGEMENT MOTION WHEN THE APPEAL HAD ALREADY BEEN PERFECTED BY BOTH PARTIES.

Petitioner raised the issue of subject matter jurisdiction at oral argument. (App. pp. 608-609). The Respondents appealed Judge Dennis’ order on May 27, 2005. Petitioner cross-appealed the order, and specifically, Judge Dennis’ allowance of a summary judgment hearing and failure to impose sanctions for the contempt, on June 2, 2005. At that point, according to Rule 205 of the South Carolina Appellate Court Rules, the trial court lost jurisdiction of the case. Rule 205 expressly states that “upon the service of the notice of appeal, the appellate court shall have exclusive jurisdiction over the appeal   Nothing in these Rules shall prohibit the lower court, commission or other tribunal from proceeding with matters not affected by the appeal.”

Here, the Petitioner’s appeal was central to the issue of summaryjudgment. Judge Young had the matter under advisement. No ruling was made by the bench. His order granting summary judgment was not entered by the Clerk until June 21, 2005. (App. p. 4) By that time, both parties had appealed Judge Dennis’s order allowing the motion to be heard. As such, the circuit court no longer had jurisdiction under Rule 205, S.C.A.C.R., to rule on the summary judgment motion since the appeal directly affected it. The Court of Appeals failed to address the matter of subject matter jurisdiction. Instead, Judge Young’s order should have been vacated.

II.  THE COURT OF APPEALS ERRED IN AFFIRMING THE CIRCUIT COURT’S HEARING THE NEWSPAPER DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AFTER IT INITIALLY HELD THE SAID MOTION IN ABEYANCE PENDING THE RESOLUTION OF THE CONTEMPT ORDER ON APPEAL, WHEN THE CLERK HAD SO ENTERED SUCH AN ORDER, AND WHEN THE CONTEMPTUOUS PARTY HAD YET TO RESOLVE THE CONTEMPT FOR A WILLFUL AND INTENTIONAL VIOLATION OF A COURT ORDER TO PRODUCE DOCUMENTS.

At the motion to compel hearing, counsel for Respondents argued issues regarding trial evidence, and suggested for the first time without evidentiary support that First Amendment considerations placed the Newspaper Defendants above such requests. These positions were, and are, wholly without merit. While agencies of the press enjoy certain constitutional protections imbedded in the substantive law, these protections do not exist in the discovery stage.

The scope of Discovery rules for defamation actions are the same as for all other civil actions. Such rules allow for depositions, production of documents, interrogatories, requests for admissions, etc. See generally Rules 26-37, SCRCP or FRCP.

Media Libel Law 2004-2005, MLRC 50-State Survey (Lightsey, Survey of South Carolina Libel Law p. 939) (emphasis added).

A business is not immune from regulation because it is an agency of the press. Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L.Ed.2d, 1094 1 Media L. Rep. 1568 (1967). Evidentiary privileges in litigation are not favored and, even though rooted in the Constitution, must give way in proper circumstances. Herbert v. Lando, 60 L. Ed 2d 115, 27 Fed. R. Serv. 2d 1, 3 Fed. R. Evid. Serv. 822, 4 Media L. Rep. 2575 (1979). In Lando, the Supreme Court of the United States noted that even the President doesn’t have an absolute privilege against disclosure of materials subpoenaed for a judicial proceeding. The Court rejected a modified construction of the First Amendment to create an evidentiary privilege into the editorial process. Certainly, a document production under confidential restrictions imposed by the Circuit Court here is not deserving of the radical protection requested by Respondents.

Judge Jefferson gave the issue appropriate consideration. The record shows she limited the production of the documents from only named defendants (App. p. 251), that the documents not be disseminated beyond the litigation (App. pp. 253, 258), and that she applied the proper standard. (App. pp. 2 57-258) In all respects, she exercised her discretion consistent with SCRCP 26.

A written Order had, in fact, been entered on March 8, 2005 by Clerk of Court, MaryP. Brown, holding Newspapers in contempt and holding their Motion for Summary Judgment in abeyance.

However, the following day, counsel for the Respondents initiated correspondence with the court to modify that ruling. (App. p. 478) Counsel for Petitioner protested, and offered to submit to the court an order accurately reflecting the hearing. (App. p. 477, p. 474; pp. 501-502, p. 470)

The opinion of the Court of Appeals reflects that Judge Dennis’ order holding Respondents’ Motion for Summary Judgment in abeyance was not a final order because it was merely an oral ruling from the bench and not entered by the clerk of court. This finding contradicts the record in this case. Page 19 of the Appendix is the written form order entered on March 8, 2005 by Mary P. Brown, Clerk of Court for Berkeley County. That order specifically states in pertinent part that “Motion for Summary Judgment filed 12-22-04 by Attorney Kerr is held in abeyance.” (App. p. 19) As the Court of Appeals aptly stated, South Carolina law requires that until an order is entered by the clerk of court, the trial court retains control of the case. $~ Upchurch v. Upchurch, 367 S.C. 16, 22-23, 624 S.E.2d 643, 646 (2006). The Clerk of Court in fact entered such an Order holding the Summary Judgment Motion in Abeyance on March 8, 2005 in accordance with Judge Dennis’ ruling at the hearing. (App. p. 19) Only on April 7, 2005, did the Clerk issue a Memorandum instructing the parties to disregard this form Order. (App. p. 20) This, however, was merely correspondence.

Before the issuance of the formal order, the parties were summoned to hear the summary judgment motion, orally ruled to be held in abeyance, on April 15, 2005. The Petitioner objected (App. pp. 176-178, p. 190, p. 497, p. 192) and argued the inherent unfairness of a contemnor being allowed to proceed with affirmative proceedings before the contempt is cured.

For what we have here is we have one litigant totally disobeying a court order on the one hand, also coming back to court saying we want the Court’s help to issue an order to get us out of the litigation.

(App. p. 191, line 22—p. 192, line 1)

A formal order was entered by the Clerk on April 29, 2005. In it, Judge Dennis changed his position and declared that the summary judgment motion could be heard. Importantly, this order was not entered by the Clerk until 4:46 p.m. on the 29th~ Further, it did not amend the form Order filed on March 8, 2005.

The summary judgment motion was heard at 10:00 a.m. on April 29, 2005. At that specific time, no order had been entered by the Clerk retracting the March 8, 2005 Order holding that motion in abeyance. The parties were told to go forward but the order allowing this was not entered by the Clerk until 4:56 p.m. on April 29, 2005 - almost seven hours after the hearing. Since “an order is not final until it is written and entered by the clerk of court,” Judge Young did not have the authority to hear the summary judgment motion on the morning of April 29th. Bowman v. Richland Memorial Hosp., 335 S.C. 88, 91, 515 S.E.2d 259, 260 (Ct. App. 1999)

Judge Young went forward with the hearing at the start of which the parties were hand-delivered Judge Dennis’ order allowing the summary judgment to go forward.

The Respondents sought the granting of their summary judgment motion after having been held in contempt for willfully withholding documents that the court had required to be produced. It is a question then, as to whether a party who deliberately disobeys a court in one instance is allowed to seek relief in that suit from the same court. There are no reported cases on this issue found in South Carolina. However, other jurisdictions have addressed the matter. It is clear that:

the rule is that while one adjudged guilty of contempt may attack the finding directly, he cannot, so long as it stands unimpeached, be permitted as a matter of right to make any motion, file any petition, or assert any claim for relief in the particular suit in which the contempt has been adjudicated.

Skirven v. Skirven, 154 Md. 267, 140 A. 205, 56 A.L.R. 697 (Ct. App. 1928). Skirven, in quoting Gilbert v. Arnold, 30 Md. 29 (1869), also states the principle, “that a party in contempt will not be heard by motion or otherwise, until he has relieved himself of the contempt.” ~4. Other jurisdictions have described the same or a similar principle. The Supreme Court of New Mexico has stated a litigant in contempt has no standing in the court. Momsen-Dunnegan-Ryan Co. v. Placer Syndicate Mining Co., 41 N.M. 525, 71 P.2d 1034 (1937). The court in Momsen goes on to state “[t]hat a party in contempt may be denied certain favors and privileges as a litigant until he has purged himself of the contempt seems not open to doubt.”~ See also In Re Guardianship of Melissa W., 96 Cal. App. 4th 1293, 118 Cal. Rptr.2d 42 (2002) (“A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders...of the courts of this state.”); DuPont v. DuPont, 34 Del. Ch. 267, 103 A.2d 234) (1954) (“...it is an ancient rule that, until one purges himself of a contempt, he may be prevented from going forward with his case.”); Campbell v. Justices of Superior Court, 187 Mass. 509, 73 N.E. 659(1905) (“The authorities agree upon the familiar doctrine that a party in contempt is not in a position to ask the court for any favor or indulgence.”). No South Carolina court has ever debated such a matter.

This principle is equitable in nature: a party who chooses to disregard a court’s authority in one instance should not be allowed to seek its help in the same action. Parties face an all-or-nothing proposition when dealing with court orders and do not have the power to pick and choose which directives to follow. However, Respondents attempted, and succeeded, to do just that. While directly and willfully ignoring a court order, Respondents sought relief in the form of a summaryjudgment. In doing so, they chose to follow the court only when it is beneficial to them to do so.

It is clear from the hearing on March 8, 2005, that the trial court intended to hold the summary judgment in abeyance until after the appeal of the contempt order was resolved. In fact, the court brought up the idea of an abeyance instead of sanctions, and Petitioner agreed to the abeyance. (App. p. 212, lines 16-22) Further, at the hearing, the court recognized the maxim discussed above in Skirven when stating, “Alright, I am going to deny your right to prematurely determine this issue because of your being in contempt.” (App. p. 213, line 23—p. 214, line 8). Therefore, there is no doubt as to the initial intentions of the court. If the Respondent were to appeal the contempt order, and once that was resolved, any other motions by Respondent could be heard. This would have been completely in line with the principle stated in Skirven and the other cases mentioned above. The Circuit Court abused its discretion in agreeing to hear and hearing the motion for summary judgment, and these rulings were error.

III. THE COURT OF APPEALS ERRED IN FAILING TO ADDRESS AND IMPOSE SANCTIONS ON THE NEWSPAPER DEFENDANTS WHO WERE FOUND TO BE IN CONTEMPT OF COURT AFTER ADMITTING THEY WILLFULLY AND INTENTIONALLY IGNORED THE COURT’S ORDER TO PROVIDE DISCOVERY DOCUMENTS AND WHEN THEY DID NOT REQUEST REVERSAL OF CONTEMPT.

Courts have the inherent power to punish for contempt. Durlach v. Durlach, 359 S.C. 64, 596 S.E.2d 908 (2004). Willful disobedience of a court order may result in contempt; a “willful act” is one done voluntarily and intentionally, with the specific intent of doing something the law forbids. (~) The Respondents demonstrate an intentional and willful disobedience of Judge Jefferson’s Order. Further, counsel for the Respondents shows disrespect for the Court, calling the ruling “senseless government action” and one that “denies common and legal sense.” (App. pp. 480-481)

The Newspaper Defendants’ willful disobedience of the Court deserved a harsh sanction, and it was suggested that the Court strike the Answer of the Newspaper Defendants or at a minimum strike the Newspaper Defendants’ Motion for Summary Judgment. The Circuit Court issued no sanctions at all. As a consequence, Judge Dennis allowed a party to willingly violate a legitimate order and disrupt the litigation without retribution. The Court of Appeals failed to address and reverse the Circuit Court on this issue.

Disobedience of a court’s lawful or valid order, judgment, or decree is such interference with the administration ofjustice as to constitute “contempt.” Long v. McMillan, 86 S.E. 2d 477, 226 S.C. 698 (1955). The court has inherent authority to punish offenses against the court calculated to obstruct, degrade and undermine the administration ofjustice, and such power cannot be abridged. State ex rel. McLeod v. Hite, 251 S.E.2d 746, 272 S.C. 303 (1979). The contempt has to be affirmed if~ for any reason, Respondents failed to ask for a reversal of this issue before the Court of Appeals. In that the Respondents are now estopped from challenging the contempt, sanctions are a must.

If “contemptuous behavior” is conduct that tends to bring the authority and administration of the law into disrespect, and interferes with parties during litigation (See, e.g., State v. Kennerly, 503 S.E.2d 214, 331 S.C. 442 (S.C. App. 1998), rehearing denied, and certiorari granted, affirmed, 524 S.E.2d 837, 337 S.C. 617 (1999)), the Respondents demonstrated behavior that warranted sanctions to ensure compliance. Civil contempt sanctions serve to coerce future compliance and to remedy past noncompliance. Jarrell v. Petoseed Co., Inc., 500 S.E.2d 86, 331 S.C. 207(S.C. App. 1998).

While it is within the discretion of the judge to issue sanctions, Petitioner contends the trial court abused its discretion with respect to sanctions when it allowed the summary judgment motion to go forward.

IV. ASSUMING ARGUENDO THAT THE SUMMARY JUDGMENT MOTION WAS PROPERLY BEFORE THE CIRCUIT COURT, THE COURT OF APPEALS ERRED IN AFFIRMING SUMMARY JUDGMENT WHEN THERE WAS CLEAR AND CONVINCING EVIDENCE OF NEW YORK TIMES V. SULLIVAN MALICE, AND THE PRINCIPLES OF ANDERSON V.   AUGUSTA CHRONICLE DICTATED THE MATTER BEING SUBMITTED TO THE JURY.

This case is about an unsubstantiated report of public corruption written by a reporter who, at a minimum, was reckless in her disregard for the truth of her report. She relied on a source not trustworthy. She knew the information was defamatory, and she turned a blind eye to evidence that shot the story out of the water. Worse, Ensor got suckered by a false plant to further a political jab. Public corruption is a grave subject since the issue of Berkeley County county officials having work performed on private property has a history dating back at least to 1983 and as recently as this summer. (Post & (‘ourier, Berkeley Roads Chief Suspended, July21, 2007; Fraud Charged in Roads Case, July27, 2007.) These cases involved criminal charges.

The Court of Appeals erred in ignoring the ample evidence of actual malice that mandate the case being submitted to a jury according to the principles of Anderson v. Augusta Chronicle. The Court in its opinion viewed the facts in a light favorable to the moving party, the Petitioner, especially in declaring that “[o]nly two facts exist in the record to show that Ms. Ensor should have doubted the veracity of Mims’ story.” This was error. The record below reveals a substantial factual record that requires reversal.

Summary judgment is a drastic remedy to be “cautiously invoked so that no person will be improperly deprived of a trial of the disputed factual issues.” Baughman v. American Telephone & Telegraph Co., 306 S.C. 11, 410 S.E.2d 537 (1991). The evidence and inferences drawn therefrom should be viewed in the light most favorable to the non-moving party. Southern Contracting. Inc. v. H.C. Brown Construction Co.. Inc., 317 S.C. 95, 450 S.E.2d 602 (Ct. App. 1994). Therefore, any difference among the facts are to be examined using the non-moving party’s events as presented to the court. The Court of Appeals, however, failed to do this, mandating that the opinion be reversed.

The Court of Appeals held that there was insufficient evidence to support a finding of actual malice in this case because the reporter, Linda Ensor, was negligent at best. The Court’s opinion, however, omits important facts that amply show at least circumstantial evidence, that “the defendant in fact entertained serious doubts as to the truth of [her] publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

Mims told Ensor about the Metts falsity about 11:30 in the morning. (App. p. 40) This was the first time Ensor had used Mims as a source. (App. pp. 41-42) Ensor was not quoting Mims at a council meeting; Mims had initiated a trip to the newspaper offices to drop off an advertisement for her real estate company. (App. pp. 41-42) She spoke to Ensor after talking to the publisher. Ms. Ensor cannot testify she attempted to reach Metts that day. (App. p. 33)

She did not ask Mims who the “constituent was” who said there were county trucks in Robbie’s yard. (App. p. 54) And within the same conversation, Mims had told her that it was one constituent as well as more than one constituent reported seeing county trucks in Metts yard. (App. pp. 54-56) No inquiry was made as to the source’s secrecy of identity, nor as to Mims’ discrepancy as to the number of sources. (App. pp. 54-56) This alone evidences a high degree of awareness of falsity.

Metts denies Ensor attempted to reach him. Failure to contact a major witness who should have been able to confirm or deny the allegations can support a jury’s finding of actual malice. See, Harte-Hanks Communications, Inc. v. Connaughton, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Ensor agrees that the story suggests that work was performed at Mr. Metts’ house by county employees for no charge. (App. p. 47) She was aware of the adversarial relationship between Mims and Rozier and that Metts worked for Rozier. (App. p. 50) Ensor did not follow her principles of writing and reporting to check sources.

There was time to remove the portions about Robbie Metts in the article. The paper went to press on July 28 for the July 30 edition at 7:00 p.m., but it previously had been to press later than 9:00 p.m. (App.. p. 58) Ensor could have made a change. (App. p. 58) The weekly papers on Monday print overnight and are distributed on Tuesday and Wednesday. (App. p. 59)

Reckless disregard cannot be fully encompassed in one infallible definition. $.~.. Amant v. Thompson. 390 U.S. 727, 888 S.Ct. 1322, 20 L.Ed.2d 262 (1968). Purposeful avoidance of the truth may support a finding of actual malice. Harte-Hanks Comm., Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678 (1989). Generally, a libel defendant’s conduct as it relates to the defamation is a fact question. Curtis Publishing Co. v. Butts, 388 U.S. 130,18 L.Ed.2d, 1094 1 Media L. Rep. 1568 (1967).

Importantly, Ensor was aware of Mims’ agenda. (App. p. 50) It is not that this ill will is imputed to the papers; rather, that knowledge possessed by the reporter should have heightened her skepticism of the source’s veracity.

The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

St. Amant v. Thompson, supra, (italics added).

Mims gave Ensor conflicting information as to whether one or more constituents reported seeing county trucks in Metts’ yard. (App. pp. 54-55) This alone is sufficient to doubt the accuracy of the informant, but the influential fact here is the reporter’s recognition that despite her belief that the story suggested Metts had county work performed at his house at no charge, the “list” from the county, prior to press, didn’t have Metts’ name on it. Nevertheless, she made a conscious decision to run the story, (App. p. 39) with the knowledge that it suggested Metts didn’t pay for the work. This demonstrates clear and convincing evidence that the publisher was aware of the likelihood she was circulating false information. The reporter had obvious reasons to doubt the informant and her report’s accuracy given her agenda, her dubious number of constituents, and failure to identify the same. Circumstantially, if not directly, it shows the newspapers published the information with actual knowledge of its falsity. Although a failure of a newspaper to investigate allegations before publishing them will not alone support a finding of actual malice, purposeful avoidance of the truth may. Harte-Hanks, supra. There is clear and convincing evidence that Ensor purposely avoided the truth.

In this case, Ensor knew Minis had an agenda. The newspapers were given conflicting information from her and Mims did not reveal her “source.” Ensor sought no independent confirmation at any time. She received the list, and even with the knowledge that the list conflicted with her source, ran with the story anyway. Worse, Ensor knew the story communicated that Metts did not pay for the work. The reference to Metts could have been deleted before press time. A subsequent, attempted “correction” reported again that county trucks were seen in Metts’ yard. (App. p. 486) Equally as egregious, the Berkeley Independent republished the defamation after being told by Metts that the original story was a “bold-face lie.” This is not circumstantial evidence, this is direct evidence of actual malice. This case is analogous to Stevens v. Sun Publishing, 270 S.C. 65, 240 S.E. 2d 812,

3 Media L. Rep. 2025 (1978). In Stevens, a newspaper published several libelous statements about a former state Senator. After ajury verdict was returned for the former lawmaker, the publishers appealed. The state Supreme Court held that actual malice was satisfied. The factors cited by the court are similar to the facts in the case at bar. The reporter admittedly recognized his informant’s obvious bias against the plaintiff, yet he failed to investigate further. The court concluded, “this Court declines to extend constitutional protection to articles containing blatantly false statements and opinions of a biased informant which imply improper conduct by a public official.” Stevens, 270 S.C. 65. This is precisely the situation here—blatantly false statements about a public official, provided by an obviously biased informant, published without any attempt of verification. As in Anderson, there is ample circumstantial evidence, if not direct evidence, that Ensor recklessly disregarded the truth. Therefore, viewing the evidence in a light most favorable to Metts, it is sufficient to submit the question of actual malice to the jury. If the case at bar is not allowed to proceed to trial, no defamation suit against a newspaper could be tried. This Court is asked not to “essentially foreclose all liability for defamers against public officials.” Anderson, supra, concurring opinion. Perhaps one of these acts or omissions would constitute negligence only, but the totality of them all demonstrate a reckless disregard for, and a purposeful avoidance ot~ the truth.

The U.S. Supreme Court has recognized that a plaintiff will rarely find success in proving awareness that a statement is false “from the mouth of a defendant himself.” Herbert v. Lando, 441 U.S. 153, 171-172, 99 S. Ct. 635,60 L.Ed.2d 115(1979). Therefore, anydirect or indirect evidence relevant to the defendant’s state of mind is admissible to prove actual malice. This principle is cited with approval by the S.C. Supreme Court in Anderson v. Augusta Chronicle, 365 S.C. 589, 619 S.E.2d 428 (2005).

The Anderson court also adopted the following principles: A plaintiff may present competent circumstantial evidence of bad faith to establish actual malice despite a defendant’s contention that the publication was niade “with a belief the statements were true.” St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262(1968). Furthermore, a subjective awareness of probable falsity can be shown if there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657,688, 109 S. Ct. 2678, 105 L.Ed.2d 562 (1989).

A. The Circuit Court erred in applying the wrong standard to the facts and law.

At the hearing on April 29, 2005, counsel for Petitioner argued the legal principles and cases cited in the Supreme Court’s recent decision in Anderson v. The Augusta Chronicle, 365 S.C. 589, 619 S.E.2d 428 (2005). Despite the constitutional protections enjoyed by the press, our Supreme Court noted in the decision that

[T]he [U.S.] Supreme Court has recognized that a plaintiff will rarely find success in proving awareness that a statement is false “from the mouth of a defendant himself.” Herbert v. Lando, 441 U.S.. 153, 171-172, 99 S. Ct 1635, 60 L.Ed.2d 115 (1979). Therefore, any direct or indirect evidence relevant to the defendant’s state of mind is admissible to prove actual malice. A plaintiff may present competent circumstantial evidence of bad faith to establish actual malice despite a defendant’s contention that the publication was made “with a belief the statements were true.” St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed2d 262 (1968). Furthermore, a subjective awareness of probable falsity can be shown if there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).

Anderson, supra.

Therefore, viewing the evidence in a light most favorable to Metts, it is sufficient to submit the question of actual malice to the jury. If the case at bar is not allowed to proceed to trial, no defamation suit against a newspaper could be tried. This Court is asked not to “essentially foreclose all liability for defamers against public officials.” Anderson, supra, concurring opinion. Perhaps one of these acts or omissions would constitute negligence only, but the totality of them all demonstrate a reckless disregard for, and a purposeful avoidance of~ the truth.

The Court of Appeal’s statement that a “correction” had run is outright erroneous. The subsequent publication entitled “correction” also communicated that county trucks were seen in Metts’ yard and that the work was being performed. This was published after Metts had informed the Respondents that the original stories constituted a “bold-faced lie”. Thus, the “correction” demonstrates a publication of the falsehood with knowledge of falsity and is a re-publication of the original defamation.

Chief Justice Jean Toal has noted that the Supreme Court of South Carolina has had occasion to apply the New York Times standard, in quoting this language from a prior case:

We believe actual malice is established when reporters and publishers depart from responsible standards of investigation and print articles on the basis of an admittedly unreliable source, without further verification... Accordingly, this Court declines to extend constitutional protection to articles containing blatantly false statements and opinions of a biased informant which imply improper conduct by a public official.

Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 506 S.E.2d 497 (1998), (concurring opinion), citing Stevens v. Sun Publishing Company, 270 S.C. 65, 72,240 S.E. 2d 812, 815-816, cert. denied, 436 U.S. 945, 98 S.Ct. 2847, 56 L.Ed. 2d 786 (1978).

Here, the Court should decline to extend constitutional protection to the articles here that communicate the Plaintiff engaged in improper conduct. There is evidence of New York Times malice and that ajury can reasonably find the same.

Persons injured by newspapers, magazines and broadcasting companies should not be relegated to remedies which make collection of their claims difficult or impossible unless strong policy considerations demand. Butts, supra (per Justice Harlan with three Justices concurring and the Chief Justice concurring in result). A publisher of a newspaper has no special immunity from application of general laws and has no special privilege to invade the rights and liberties of others. I~. The right to communicate information of public interest is not unconditional. j~. Even in connection with judicial proceedings, inaccurate and defamatory reports of facts deserve no First Amendment protection. Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958 (1976).

As Justice Burnett addressed in his concurring opinion in Anderson:

allowing a jury to determine whether actual malice has been shown in the face of considerable circumstantial evidence.. .strikes a balance between protecting an individual’s reputation and the First Amendment’s protection of free speech.

The right of a free press is not absolute in a society that demands social responsibility and personal integrity. Freedom itself is conditional upon the recognition of a higher social duty to pursue truth and justice.

Anderson, supra (Burnett concurring).

In the present case, the Newspapers were not seeking the truth. Rather, they were manipulated and duped into being a vehicle to spread a serious, false charge of public corruption by a political adversary of the Petitioner. The press has an obligation not only to root out and expose those who are publicly corrupt, but to avoid unsubstantiated, inflammatory charges of criminal activity against those true public servants. The law should be such that it protects the rights so people considering a career of public service should not be so otherwise discouraged.

In this case, the Respondents knew that the infonnant was untrustworthy, for she even refused to identify who the constituent was and was confused as to whether it was one or more. She gave this information with a political agenda, known to the reporter. The reporter knew the defamatory nature of the information and most importantly knew that it was wrong when making a conscious decision to go forward.

CONCLUSION

The Petitioner respectfully requests the Court:

I. Affirm the Circuit Court’s finding of contempt,

2. Reverse the finding of no sanctions,

3.  Sanction the Respondents to ensure compliance with the administration of justice and the rights of the litigant, the Petitioner, or in the alternative remand to the circuit court for imposition of sanctions;

4. Compel the production of the documents Respondents refused to produce;

5. Reverse Judge Dennis’ ruling that the summary judgment motion could be heard and Judge Young’s hearing of that motion before the contempt was cured;

6. Vacate Judge Young’s order granting summary judgment; and

7. Remand the case consistent with the Anderson decision with a finding that the Petitioner has demonstrated that his case be submitted to the jury and that the case be so submitted.

  Respectfully submitted,

 

                                                                                   

Stephen F. DeAntonio
DeAntonio Law Firm, LLC                                                                                   
P.O. Box 815
Charleston, SC 29402
(843) 577-8080

Attorneys for Petitioner
E. Paul Gibson
Riesen Law Finn, LLP
P.O. Box 40997
Charleston, SC 29423-0997
(843) 760-2450

September 6, 2007                                                     

THE STATE OF SOUTH CAROLINA
In The Supreme Court

APPEAL FROM BERKELEY COUNTY
Court of Common Pleas

R. Markley Dennis, Jr., Circuit Court Judge Deadra L. Jefferson, Circuit Court Judge Roger M. Young, Circuit Court Judge

Opinion No. 4148 (S.C. Ct. App. filed Aug. 14, 2006)

Robert William Metts Petitioner.

v.

Judy Mims, Berkeley Independent Publishing Company, Inc. d/b/a The Berkeley Independent and Summerville Communications,
Inc. d/b/a The Goose Creek Gazette Defendants.

Of whom Berkeley Independent Publishing Company, Inc. d/b/a The Berkeley Independent and Summerville Communications, Inc. d/b/a The Goose Creek Gazette areRespondents.

PROOF OF SERVICE

We certify that we have served Appendix Volumes I and II on Respondents by depositing a copy of them in the United States Mail, postage prepaid, on September 7, 2007, addressed to their attorney of record at his office address listed below:

John J. Kerr, Esquire
Buist, Moore, Smythe & McGee
P.O. Box 999
Charleston, SC 29402
(843) 720-4630
Attorney for Appellants/Respondents
September 7, 2007

 

E. Paul Gibson
Riesen Law Firm, LLP
P.O. Box 40997
Charleston. SC 29423-0997
(843) 760-2450

Stephen F. DeAntonio
DeAntonio Law Firm, LLC
P.O. Box 815
Charleston, SC 29402
(843) 577-8080
Attorneys for Petitioner