McCoy

Appellants, two police officers and an assistant district attorney, obtained judgments in their libel actions against respondents—a newspaper and two of its reporters. The California Supreme Court reversed the judgments without directions, for insufficiency of the evidence, and the *1659 trial court then entered judgment for respondents and dismissed the actions. The sole issue on appeal is whether the unqualified reversal for insufficiency of the evidence entitles appellants to a retrial. We conclude it does not.

History

Appellants based this defamation action on a series of articles by respondents suggesting that appellants had conspired and engaged in deliberate misconduct to obtain the murder conviction of an innocent person. The jury returned verdicts in favor of appellants. Respondent newspaper’s motions for judgment notwithstanding the verdict (JNOV) 1 and for a new trial were denied and the judgment was affirmed by this court. The California Supreme Court reversed, concluding that “at the time the articles were published, [respondents] did not possess a subjective awareness of probable falsity” (McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 868 [ 231 Cal.Rptr. 518…

I concur but write separately to urge the California Supreme Court to grant review in this case.

The real issue is what the California Supreme Court intended when it ordered the unqualified reversal. While we can only speculate as to that intent, the California Supreme Court can speak definitively. This case was particularly suited for transfer to the California Supreme Court, before our decision, upon petition by a party. (Cal. Rules of Court, rule 27.5.) Absent such a petition we had no choice but to try cutting the Gordian knot, but unlike Alexander the Great we can now ask Gordius himself to untie it.

I also suggest that, whatever the California Supreme Court’s intent, an unusual equitable consideration favors a grant of review and retrial order in this case. In its prior opinion, the California Supreme Court misread a pivotal United States Supreme Court decision, Bose Corp. v. Consumers Union of U.S. Inc. (1984) 466 U.S. 485, 512-513 [ 80 L.Ed.2d 502, 514-524 , 104 S.Ct. 1949 ], and consequently misinterpreted the standard of independent appellate review in First Amendment libel cases.

The trial court in Bose had determined that certain testimony as to lack of malice was…

Appellants, two police officers and an assistant district attorney, obtained judgments in their libel actions against respondents — a newspaper and two of its reporters. The California Supreme Court reversed the judgments without directions, for insufficiency of the evidence, and the trial court then entered judgment for respondents and dismissed the actions. The sole issue on appeal is whether the unqualified reversal for insufficiency of the evidence entitles appellants to a retrial. We conclude it does not.

Appellants based this defamation action on a series of articles by respondents suggesting that appellants had conspired and engaged in deliberate misconduct to obtain the murder conviction of an innocent person. The jury returned verdicts in favor of appellants. Respondent newspaper's motions for judgment notwithstanding the verdict (JNOV) [1] and for a new trial were denied and the judgment was affirmed by this court. The California Supreme Court reversed, concluding that "at the time the articles were published, [respondents] did not possess a subjective awareness of probable falsity" ( McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 868 [ 231 Cal. Rptr.…