‘A Victory,’ Nestande Says : Edison Miller Libel Suit Dismissed After 5 Years

After nearly five years of pretrial wrangling, an Orange County judge on Wednesday dismissed former Supervisor Edison W. Miller’s libel suit against his 1980 campaign foe, current Supervisor Bruce Nestande, and 29 former Vietnam prisoners of war.

Superior Court Judge Judith M. Ryan ruled that Miller, accused of collaborating with the North Vietnamese while he was a POW for more than five years, could not meet the high burden of proof required of public officials in defamation cases.

Ryan said Miller did not present evidence showing that any of the defendants acted with actual malice, that is, with knowledge that their statements were false or with reckless disregard for the truth.

A trial had been scheduled for May 13.

“Today’s ruling is a victory not just for the POWs and myself but for the voters as well,” Nestande said in a prepared statement. “The decision affirms the right of all parties on the campaign trail to speak freely on issues of concern and importance to voters.”

Nestande, who is in Hawaii and declined to be interviewed, said in his statement that any other decision would have “a chilling effect on future political campaigns” by inhibiting discussion of public issues.

Miller, 53, now a Santa Ana lawyer, also would not talk to reporters. Previously, he had expressed hope that a public trial would clear his name.

His attorney, Richard V. McMillan of Santa Ana, said an appeal was being planned.

Miller’s actions as a POW became a political issue in July, 1979, when former Gov. Edmund G. Brown Jr., at the urging of actress Jane Fonda and husband Tom Hayden, both Vietnam war protesters, appointed him to fill a vacancy on the Orange County Board of Supervisors.

Miller’s appointment was controversial, and Nestande, then an assemblyman, decided to challenge Miller for the county seat in 1980.

The campaign included a letter Nestande sent to about 100,000 voters a week before the June 3 election urging a vote against Miller. Signed by 214 former POWs, the letter claimed that Miller wrote articles and made tape recordings for the North Vietnamese, activities they said violated Miller’s oath as a military officer and his orders from superiors.

Miller sued June 2 but still lost the election by a wide margin the next day.

Miller was a Marine lieutenant colonel when his F-4 Phantom jet was shot down during a bombing mission over North Vietnam on Oct. 13, 1967. During five years and four months in various North Vietnam POW camps, he became one of a number of prisoners who publicly criticized U.S. involvement in the Vietnam War.

Betrayal Denied

But he denied doing anything to betray his countrymen. After three days of beatings and torture, he said, the enemy learned only that the aircraft he was flying reached 500 m.p.h. and could carry 10 bombs. He was left with a broken back and a broken right leg from the crash and a partially paralyzed left arm and loss of hearing in both ears from the beatings. He was released Feb. 12, 1973.

Without a hearing, then Secretary of the Navy John W. Warner publicly censured the pilot on Sept. 27, 1973, claiming that he put his comfort above that of his fellow POWs and that his actions were “severely detrimental” to fellow POWs. The same day, however, Miller was promoted to full colonel and left the corps on a disability retirement.

Warner’s censure was ordered removed from military records last January by a U.S. District Court judge in Washington, D.C., who found that the record before Warner “contains no grounds for any decision but one to expunge” the letter of censure. The Navy is appealing the decision.

“Not a single person saw Ed Miller do anything wrong,” Miller’s Washington lawyer, Richard L. Swick, said at the time. “It was all hearsay. Someone would say he knew Miller did something wrong because someone else had told him . . . . What it was was Miller was just unpopular.”

Nestande claimed in his motion to dismiss the case that he had done everything reasonably possible to make sure the letter he sent was accurate.

“Nestande did an intensive investigation,” said one of his lawyers, James S. Tyre of Los Angeles. “He read the book, ‘P.O.W.,’ and talked to a number of former prisoners of war. He knew about the secretary of the Navy’s censure, and he had more than 200 signed letters from former POWs. He relied on all of it to believe that the letter was true.”

Believed to Be True

The 29 former POWs still in the case submitted declarations stating that while they were in captivity, they had heard accounts of Miller’s activities and believed them to be true, said their attorney, Robert A. Walker of Santa Ana.

Plaintiff’s attorney McMillan called their claims “the bottom of my heart defense.”

“You can say anything you want about a public official and defend it by saying that, ‘In my heart, I believed what I said.’ There’s no way to test the subjective intent of a person except by putting him before a jury,” he said.

But Judge Ryan said McMillan failed to offer any proof that Nestande or the former POWs had acted with actual malice.

She said the landmark 1964 U.S. Supreme Court case of New York Times vs. Sullivan, which stated that the First Amendment guarantees of free speech and press require public officials to prove actual malice to win defamation suits against the news media, applied as well to non-media defendants.

McMillan argued that non-media defendants, like Nestande and the former POWs, did not have that First Amendment protection in libel cases brought by a public official.

That issue has never been decided by the state or the U.S. supreme courts, said Stanford University Law School professor Marc Franklin, a First Amendment expert. But every lower state and federal court that has considered the question, he said, has extended the Times vs. Sullivan defense to non-media defendants as well.