Opinion
NO. 2016-CA-000046-MR
03-24-2017
EDWARD H. FLINT APPELLANT v. GANNETT CO., INC. APPELLEE
BRIEF FOR APPELLANT: Edward H. Flint Louisville, Kentucky BRIEF FOR APPELLEE: Jon L. Fleischaker Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 15-CI-005156 OPINION AND ORDER
AFFIRMING
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BEFORE: COMBS, DIXON AND NICKELL, JUDGES. DIXON, JUDGE: Edward H. Flint (Flint) files this appeal from an order of the Jefferson Circuit Court dismissing his appeal. Because we hold that Flint has failed to allege any sufficient grounds for relief, we affirm.
Flint has filed petitions for impeachment against many Kentucky judges, as well as Steve Beshear. Flint alleges that "[t]he House of Representatives leaders have refused to hold trials on each [p]etition" he has filed. Though Flint sent information concerning these petitions to the Louisville Courier-Journal and the Lexington Herald, both publications declined to publish Flint's information concerning the legislature's purported corruption. Flint then filed suit in circuit court, requesting the court to mandate publication. Flint believes that because he is a shareholder of Gannett Co., Inc. (Gannett), they owe him a fiduciary duty to publish this information. The circuit court dismissed Flint's case for the failure to state a claim.
Steve Beshear is no longer the governor of Kentucky, having been succeeded by Matthew Bevin.
Though Flint listed several different parties to the circuit court's action below, he only lists Gannett in his notice of appeal. He also did not include any party other than Gannett in his caption. Under Kentucky Rule of Civil Procedure (CR) 73.03, "[t]he notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from."
On appeal, Flint argues the circuit court should not have dismissed his case, and the dismissal of his case indicates that the judge below was corrupt. He also argues that Gannettt Co. and the Courier-Journal were colluding to cover up "the truth of what [is] happening to Kentucky citizens[.]" Because we agree with the circuit court that Flint has failed to state a claim, we affirm.
In Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258, 94 S. Ct. 2831, 2840, 41 L. Ed. 2d 730 (1974), the Miami Herald Publishing Company printed an editorial criticizing Tornillo's candidacy for the Florida House of Representatives. Id., 418 U.S. at 243, 94 S. Ct. at 2832. Tornillo crafted a response, and demanded that the Miami Herald Publishing Company print it. Id., 418 U.S. at 243-44, 94 S. Ct. at 2833. The company refused. Id. Tornillo sued under a statute which provided that "if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges." Id., 418 U.S. at 244, 94 S. Ct. at 2833. The United States Supreme Court found the Florida statute to be unconstitutional, stating as follows:
Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electrol coverage would be blunted or reduced. Government-enforced right of access inescapably "dampens the vigor and limits the variety of public debate," New York Times Co. v. Sullivan, supra, [376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1964)]. The Court, in Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437 (1966), stated:
"[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates . . . ."
Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—
constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time...Tornillo, 418 U.S. 241, 257-58, 94 S. Ct. 2831, 2839-40, 41 L. Ed. 2d 730 (1974) (footnotes omitted). Under Tornillo, to allow Flint editorial control over a publication via judicial interference would violate the freedom of the press.
We also believe the issues raised in this case and those in Flint v. Jackson, No. 2014-CA-000426-MR, 2014 WL 7206835, at *1 (Ky. Ct. App. Dec. 19, 2014) to be identical. In that case, this Court held that "Flint failed to set forth any legal basis or claim for relief in his complaint[,]" Id. at *5. We come to the same conclusion in the present case. Simply stated, this Court cannot mandate that Gannettt print his article.
This Court included the entirety of the complaint in that opinion. It appears that Flint did not raise any additional issues in his complaint in this case. --------
Gannett has moved for sanctions against Flint. CR 73.02(4) permits this Court to impose either single or double costs as a sanction for frivolous filings. In a concurrence, Judge Maze commented on Flint's litigation habits: "[i]t is my hope that the members of the Court of Justice, at both the trial and appellate levels, will take reasonable steps in the future to ensure that an inordinate amount of these extremely limited resources are not exhausted on a single unappeasable plaintiff." Flint v. Jackson, No. 2014-CA-000426-MR, 2014 WL 7206835, at *5-6 (Ky. App. 2014) (Maze, J., concurring). We have also referred to Flint's willingness to "manipulate the court system by suing any judge who hands down a contrary ruling and later seek their recusal." Flint v. Coach House, Inc., No. 2010-CA-001166-MR, 2011 WL 4502348, at *4 (Ky. App. 2011) (internal quotation marks omitted). A panel of this Court has stated that
we believe it important to note that Flint makes several unsubstantiated, defamatory and derogatory accusations regarding corruption within the membership of the judiciary and the bar in an apparent attempt to garner support for his position. Such bluster, seeking only to vilify, discredit or agitate other participants, fails to address the substantive issues and provides no support for [...] Flint's position. It is therefore unnecessary, ineffective and offensive. These tactics will not be condoned or tolerated.Flint v. Coach House Inc., No. 2012-CA-001056-MR, 2014 WL 354650, at *4 (Ky. App. 2014). As Flint has repeatedly ignored Court directives to refrain from this conduct, we believe that sanctions against Flint are appropriate. Single costs are awarded against Flint.
Because we hold that the circuit court correctly found that Flint has failed to state a claim upon which relief could be granted, we need not decide whether Flint's claim was barred by res judicata or the statute of limitations. The Jefferson Circuit Court's order dismissing Flint's suit is affirmed.
ALL CONCUR. ENTERED: March 24, 2017
/s/ Donna L. Dixon
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Edward H. Flint
Louisville, Kentucky BRIEF FOR APPELLEE: Jon L. Fleischaker
Louisville, Kentucky