Detroit JOA Was Barely Approved p.

By: Mark Fitzgerald

Deceased Supreme Court Justice Thurgood Marshall's papers
reveal Justice Blackmun's last-minute switch against it
DETROIT'S NEWSPAPER JOINT operating agreement only narrowly won Supreme Court approval in 1989 on a 4-4 tie because Justice Harry Blackmun switched at the last minute from approval to opposition, according to the recently released papers of the late Justice Thurgood Marshall.
The papers reveal for the first time how individual justices voted on the operations merger of Knight-Ridder's Detroit Free Press and Gannett's Detroit News ? the largest JOA ever approved.
According to the documents, voting in favor of the JOA were Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia.
Voting to overturn the JOA approval by then U.S. Attorney General Edwin Meese were Justices John Paul Stevens, William Brennan, Marshall and Blackmun.
The papers show that Marshall's opposition was apparently influenced by the advice of his law clerks, while Blackmun was persuaded to switch from approval to opposition by the arguments of Justice Stevens.
The light the papers shines on the justices' thinking on the JOA case ? which was shrouded in secrecy at the time because of the 4-4 vote ? was first reported by Bryan Gruley, a reporter in the Detroit News Washington bureau.
For Gruley ? author of Paper Losses, a book about the long and tangled fight for the Detroit JOA that is to be published in the fall by Grove Press ? there were as many frustrations as revelations in the Marshall papers.
"There's just very little in [Marshall's] files on the JOA," Gruley said.
Nevertheless, Gruley's research did turn up some fascinating nuggets on the process that led to approval.
For one thing, the High Court's own legal staff did not think the justices would even take up the JOA case.
"This does not appear to be the type of issue which the court would review," wrote legal staff members Richard Schickele and Dennis McKinnie on March 15, 1989.
The case arrived at the Supreme Court after many twists and turns. On May 9, 1986, Gannett and Knight-Ridder filed for the JOA.
That July, the Justice Department's Anti-Trust Division recommended a public hearing.
After several weeks of hearings in 1987, Administrative Law Judge Morton Needelman recommended that Meese reject the JOA.
In August of 1988, however, Meese approved the partial merger, saying he was convinced the Free Press was in danger of financial failure.
The JOA was stayed as a coalition of opponents appealed Meese's approval in federal court.
In February of 1989, a federal appeals court cleared the way for implementation of the JOA.
After some false starts, the U.S. Supreme Court decided on May 1, 1989 to review the JOA approval.
During the Oct. 30, 1989 hearing, Justice Stevens appeared the most critical of the JOA.
The first vote on the JOA was 5-3 in favor of approval, Marshall's papers show.
But in a memo to Rehnquist, Blackmun said he changed his vote to disapproval because of Stevens' "persuasive" analysis, the Detroit News' Gruley reports.
"Unfortunately, there's nothing else in there giving [Stevens'] argument," Gruley said.
The argument in opposition to the JOA advanced by Marshall's law clerks, however, is detailed in the papers.
In an Oct. 10, 1989 memo, the clerks argue that the Free Press was not really a failing newspaper but had been willing to lose so much money ? a total of about $100 million during the 1980s ? in an effort to take circulation and advertising dominance from the market-leading News.
The clerks maintained Meese's approval rested on too broad an interpretation of the Newspaper Preservation Act, the law regulating JOAs.
They also suggested that readers and advertising might not fall so precipitously as feared if the Free Press raised its very low prices. Before the JOA, for example, the Free Press had a cover price of 20? and the News just 15?.
Because the court was deadlocked 4-4, the federal appeals court ruling stood and the individual votes of justices were not announced.