Barber v. Perdue

390 S.E.2d 234, 194 Ga. App. 287, 1989 Ga. App. LEXIS 1729

• Court: Court of Appeals of Georgia
• Decided: December 20, 1989
• Docket: A89A1420
• Status: Published

Opinions

Beasley, Judge.

Appellant Jack McWhorter “Mac” Barber filed a lawsuit against appellee Tom Perdue, a former administrative aide to the governor, alleging that Perdue had libeled and slandered Barber. This appeal follows the grant of summary judgment to Perdue.

The alleged libel was contained in a letter sent out by Perdue at the beginning of August 1986 to approximately 350 various city and county officials throughout Georgia during the 1986 political campaign for a seat on the Public Service Commission. Appellant had resigned from the PSC seat in February 1985 and then qualified to run in the 1986 election against Gary Andrews, a recent appointee to the position from which Barber had resigned. In July 1986, an Andrews press conference was held at which certain public documents from an investigative file on Mac Barber were released. Shortly thereafter Per-due sent the letter, as follows, on plain stationery with his home address:

Lately, I have called on you often to ask for your assistance, and there is no way to really express in a letter my appreciation for the consideration and response you have provided. Now, once again, I must ask for your help.

A year and a half ago, a Public Service Commissioner betrayed the public trust and tarnished his own reputation and, indirectly, that of all public officials by accepting what amounted to a bribe. When confronted with the fact that the Attorney General and the Georgia Bureau of Investigation had this information and were about to seek a felony indictment, Mac Barber chose to resign his office rather than face the prospect of indictment and conviction. The trucking company official who gave Mac Barber the money was convicted and fined a total of $12,000.00!

This situation has occurred twice since Governor Harris has been in office. The first official was, as you remember, Sam Caldwell, who also betrayed the public trust and later was convicted of defrauding the state. Under pressure, he resigned as Labor Commissioner. To my way of thinking, Mac Barber and Sam Caldwell are two of the biggest embarrassments that state government has ever suffered.

As specified by the State Constitution, when these vacancies occurred, Governor Harris was required to make appointments to fill them. In the case of the Labor Commissioner, the Governor appointed Joe Tanner, and in the case of the Public Service Commissioner, he appointed Gary Andrews. In contrast to their predecessors, these two men epitomize what a public servant should be. They have integrity and character and stand for what is right, good, and fair. While managing the responsibilities of their jobs, they also have had to rebuild the public trust and confidence Mac Barber and Sam Caldwell destroyed in those positions and in state government.

My request of you at this time is that you please do everything you possibly can during the last week of the campaign to make sure that Gary Andrews and Joe Tanner are elected. The people of Georgia deserve officials they can trust and honesty in state government.

The alleged slander consisted of Perdue’s comments to an Albany newspaper reporter along the same lines as the letter.

“A libel is a false and malicious defamation of another, expressed in print . . . , tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). “Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. [Cit.]” Grayson v. Savannah News-Press, 110 Ga. App. 561, 566 (139 SE2d 347) (1964). “Slander or oral defamation consists in: (1) Imputing to another a crime punishable by law . . . .” OCGA § 51-5-4 (a). Bribery is such a crime. OCGA § 16-10-2.

Appellant concedes, for purposes of this action, that he is a “public figure” who is prohibited “from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, 376 U. S. 254, 279-280 (84 SC 710, 11 LE2d 686) (1964). Inasmuch as the First Amendment mandates that a public figure plaintiff prove actual malice by clear and convincing evidence (id. at 285-286; Harte-Hanks Communications v. Connaughton,_U. S__(109 SC 2678, 105 LE2d 562) (57 LW 4846) (1989); Williams v. Trust Co. of Ga., 140 Ga. App. 49, 52 (230 SE2d 45) (1976)), “a court ruling on a motion for summary judgment [in such a case] must be guided by the New York Times ‘clear and convincing’ evidentiary standard in determining whether a genuine issue of actual malice exists — that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 257 (106 SC 2505, 91 LE2d 202) (1986).

The case is not ripe for summary judgment in favor of defendant as the moving party. The four-volume record shows that there are material factual disputes which are relevant to the issue of knowledge or at least reckless disregard, which themselves are material to the pivotal issue of actual malice in the promulgator’s issuance of the statements.

In deciding motions for summary judgment, our rule is the same under OCGA § 9-11-56 as is the rule under FRCP 56. The Supreme Court framed it: “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes [v. S. H. Kress & Co.], 398 US [144], at 158-159. . . .” Anderson, supra at 255, Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981); Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971). The question of law before us is whether, in this posture, viewing all the direct and circumstantial evidence and reasonable inferences in plaintiff’s favor, a jury could find by clear and convincing evidence that defendant sent the letter or made any of the untrue statements “ ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Anderson, supra at 244, quoting New York Times Co. v. Sullivan, 376 U. S. 254, 279-280, supra. Such would constitute the element of actual malice which is an ingredient of a defamation case of this type.

Although “clear and convincing” is a more stringent standard than “preponderating” and requires a greater quantum and a high quality of proof in plaintiff’s favor, Anderson, supra at 254, it has been recognized that proof of actual malice “does not readily lend itself to summary disposition,” Hutchinson v. Proxmire, 443 U. S. 111, 120, n. 9 (99 SC 2675, 61 LE2d 411) (1979). See Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d, § 2730, pages 240-245. This is because, as said in Hutchinson, proof of actual malice “calls a defendant’s mind into question.” Proof of state of mind “could be in the form of objective circumstances from which the ultimate fact could be inferred” as well as direct evidence from defendant. Herbert v. Lando, 441 U. S. 153, 160 (99 SC 1635, 60 LE2d 115) (1979). Because of the very nature of this element of the tort, Herbert pointed out that “[cjourts have traditionally admitted any direct or indirect evidence relevant to the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages.” Id. at 165. Evidence of motive may bear a relation to the actual malice inquiry. Harte-Hanks Communications, supra, 57 LW at 4849.

Because of the opportunities for having or obtaining, from objective sources, a knowledge of the true facts prior to publication of the statements, which on their face were libelous if not true, OCGA § 51-5-4 (a), defendant has not conclusively eliminated a finding of actual malice which finding is based on clear and convincing evidence. Much of what is in dispute depends, for its resolution, on the credibility of witnesses. Defendant’s own denial of actual malice is not conclusive in the presence of evidence to the contrary. St. Amant v. Thompson, 390 U. S. 727, 732 (88 SC 1323, 20 LE2d 262, 268) (1968). Not only direct evidence, but circumstantial evidence and reasonable inferences, are for a factfinder’s sifting. Harte-Hanks Communications, supra, as illustrative.

That is outside of our circumscribed function as an appellate court, Guye v. Home Indem. Co., 241 Ga. 213 (244 SE2d 864) (1978), and was so for the trial court. OCGA §§ 24-9-80; 9-11-56. As the Supreme Court reiterated in the Anderson summary judgment case, supra at 255: “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment. . . .”

There is evidence that defendant did not personally check the facts in the letter before sending them out from his home under the weight of his signature, knowing that he was identified as the governor’s administrative aide. He deposed that he reviewed the GBI file, which contained contrary information which at the least could be inferred that defendant “entertained serious doubts as to the truth of his publication,” St. Amant, supra at 731. Nevertheless, he instructed an assistant counsel to compare what was said in the letter only with what was in the law department’s summary memo. Defendant knew from the GBI file, or did not seek to verify otherwise, that the trucking company official’s sentence was for an incident not involving Barber. If he knew this to be true, a jury could infer that its inclusion in the letter about Barber was a deliberate implication that Barber’s guilt, though not established by conviction, was a confirmed fact or at least a foregone conclusion upon which the letter recipients could rely in acting.

In addition, the law department memo itself stated that the official pleaded nolo contendere and was given first offender status; it was not a conviction, not a finding of guilt. Yet the jury could find that the letter-writer’s statement clearly implied that the official was guilty as a matter of law, and that he parlayed this as fact to verify the guilt of plaintiff in the same transaction.

In addition, there is undisputed evidence that defendant knew that plaintiff had not been convicted or even indicted for bribery, yet stated that he was guilty of it. A jury can reasonably infer that he stated his opinion as though it were an official fact, despite the accusation’s not having been proved beyond a reasonable doubt in a court of law. Adding the words “what amounted to” does not detract from the direct statement that Barber accepted a bribe, for it can reasonably be construed to mean only that it was ostensibly given for another purpose. Whether Barber would have been convicted or not is fraught with the imprecision of the application of the bribery law, OCGA § 16-10-2, in “campaign contribution” cases, as illustrated by the recent case of State v. Agan, 259 Ga. 541 (384 SE2d 863) (1989).

The letter also states that the reason Barber resigned was that he chose resignation rather than indictment “and conviction,” as though conviction were a certainty. Defendant had no basis on which to draw such an unqualified conclusion regarding conviction. Also, there is evidence that the reason for resignation was otherwise and that he did not know what motivated Barber to resign. Yet a jury could find that the author of the letter implied that resignation was attributable to an acknowledgment of guilt, despite Barber’s denial to this day of any wrongdoing. This statement, too, was used in the letter to verify the truth of the statement that Barber had accepted a bribe.

The state law department memorandum does not conclusively establish the facts as a matter of law. It contains the results of investigation, made for the purpose of possible prosecution; what it states as facts were never tested in a court of law and many of them remain in dispute in this separate civil case, as is apparent from plaintiff’s evidence. The latter, for one thing, weaves other assertions of fact into the outline to give what plaintiff contends to be a more complete picture.

Among the objective undisputed facts which have a bearing on the issue of actual malice are that defendant had access to the true facts, that this action was taken by defendant in an effort to discredit plaintiff as one who should be returned again to the state’s Public Service Commission, that it was done in the heat of political campaign, that it was directed to local officials to influence them, that it was done with an assessment that it would have an impact on significant numbers of votes, that it was accomplished not as an official act but as a personal communication outside the governor’s office. Disputed was whether defendant knew of the doubts which the GBI and the attorney general and law department had.

The subtlety inherent in ascertaining a person’s state of mind, and the nuances discernible from objective and not only subjective evidence, in this case where plaintiff has come forth with disputing evidence on material facts about what defendant knew and upon what basis he acted, where plaintiff does not rely on the pleadings or only on the proposition that the jury might disbelieve the defendant’s denial of legal malice, see Anderson, supra at 256, required the trial court to deny the motion for summary judgment.

Judgment reversed.

Carley, C. J., Been, P. J., Banke, P. J., and Pope, J., concur. Been, P. J., also concurs specially. McMurray, P. J., Birdsong, Sognier and Benham, JJ., dissent.