One Toast Too Many p.

By: Mark Fitzgerald

Book, Marshall papers hint at why Justice White
stayed out of the JOA decision
ONE OF THE mysteries of the Detroit newspapers joint operating agreement case is why U.S. Supreme Court Justice Byron R. White recused himself from the 1989 case.
Now there is evidence the reason may be that White's attempts to make small talk at a Washington cocktail party backfired embarrassingly.
The late Justice Thurgood Marshall's sparse files on the Detroit newspapers joint operating agreement offer tantalizing clues that jibe with speculation about the recusal in an upcoming book devoted to the tangled Detroit JOA fight.
Marshall's papers tend to conform with the theory that Detroit News reporter Bryan Gruley suggests in Paper Losses, a book with the working subtitle A Modern Epic of Greed and Betrayal at America's Two Largest Newspaper Companies, to be published this fall by Grove Press.
According to Marshall's papers, while White told Chief Justice William Rehnquist on April 24, 1989, that he would not participate in the JOA case, he had voted in a routine procedural matter involving the JOA just four weeks before.
The timing, Gruley says, suggests White did not recuse himself because of some long-standing conflict of interest, but rather because of a chance encounter at a cocktail party in April of 1989.
At the time the recusal was announced, some speculated that White withdrew because he was a longtime acquaintance of prominent Washington lawyer Clark Clifford, who was then a director of Knight-Ridder and represented the company in the JOA case.
However, Gruley says White's change between the two votes indicates that the recusal more likely stems from an unlikely ? and embarrassing ? incident at a social occasion.
"White may have been spooked by the unexpected encounter with Chip Weil," Gruley said.
Louis A. "Chip" Weil III at the time was publisher of Gannett's Detroit News.
The two met at a reception the News threw in connection with the annual Gridiron Club show in Washington in April 1989.
White had been invited to the show's premiere by a News reporter.
Gruley says White apparently enjoyed the show so much he returned for a repeat performance the next night, much to the surprise of the News reporter.
As a courtesy, the journalist invited the justice to a cocktail buffet the Detroit News was hosting at the Capital Hilton.
Much to everyone's surprise, Gruley reports, White went to the affair.
"In effect, he crashed it," Gruley said. "He didn't know he was crashing it, though."
It was when White was introduced to Detroit News publisher Chip Weil he made the mistake that Gruley says likely led to his recusal.
"He said to Weil, 'So how is your thing going in Detroit?' Weil said, 'Well, it's coming before your Court' ? and White just turned around and didn't say another thing," Gruley reported.
"He didn't understand [until then] he was going into a room full of News people," Gruley said.
White also may have assumed that the issue ? of whether to grant a Supreme Court hearing to the opponents of the JOA ? was closed, Gruley said.
Justice White would have been a vote in favor of the JOA, Gruley argues in the book.
Had the vote gone 5-4 one way or another, the High Court would have had to issue a decision evaluating the JOA law ? the Newspaper Preservation Act ? 20 years after its enactment in 1969.