Clawson v. Longview Publishing Co.

589 P.2d 1223, 91 Wash. 2d 408, 4 Media L. Rep. (BNA) 2163, 1979 Wash. LEXIS 1162

• Court: Washington Supreme Court
• Decided: January 5, 1979
• Docket: 43668
• Status: Published

Opinions

Utter, J.

This is an appeal from a $10,000 judgment rendered in a defamation action against appellant publishing company and the managing editor of the Longview Daily News, Ted M. Natt. Appellants allege numerous substantive and evidentiary errors in conduct of the trial below. Finding the appeal to be meritorious, we reverse the judgment against the appellants and return this case to the Superior Court for further proceedings consistent with our determination.

This controversy arose out of a comprehensive investigation into the activities and practices of Charles Gill, Sheriff of Cowlitz County. That investigation resulted in the publication of articles in The Daily News focusing on the sheriff's conduct in office. One incident described in the articles involved the respondent, Eugene (Bert) Clawson, who was Administrator of the Cowlitz County Motor Pool. It was reported that respondent had towed a disabled automobile belonging to the sheriff's son to the county garage. The article containing that report, appearing in the April 23, 1973, edition of the newspaper, went on to state:

Once in the shop, the sheriff purchased a new engine block. But Clawson purchased a variety of small parts— from a water pump to spark plugs — for the Gill Boy's car at county expense. The total cost of parts was just over $41.

The new block and engine parts were installed on county time. The son's car was reportedly in the garage for several weeks and caused at least one county employee to complain about it. There was an oral policy in effect at the time that private cars not be worked on.

Respondent then commenced this defamation action. The next week the newspaper published a letter of response from the sheriff claiming not to have "done anything wrong." The paper included an editor's note stating that the article was published after a "thorough investigation", and that it was "fair, accurate and factual."

Respondent was Administrator of the Cowlitz County Motor Pool for nearly 10 years until his dismissal in October 1972 for involvement in the incident which is the subject of this defamation action. The function of the motor pool was to maintain and repair county vehicles. Respondent supervised a staff consisting of one full-time assistant and other part-time employees. He operated the motor pool without direct supervision and without specific written or oral instructions. He had arrangements with local distributors to supply the motor pool with a constant inventory of gas, oil, spark plugs, and other small parts and he had authority to bind the county financially for such items. Further, he had independent financial authority — up to $500 per purchase — to spend county funds in the procurement of parts and supplies through open accounts maintained at numerous establishments. Simultaneously, respondent operated his own private towing and garage business. He kept his tow truck at the county motor pool facility and maintained private accounts at many of the same automotive establishments at which the county had an open account.

After respondent's dismissal, the prosecuting attorney began an investigation. He found what he concluded to be irregularities in the purchases of the county motor pool, irregularities which he concluded clearly demonstrated criminal conduct by respondent. An assistant prosecuting attorney, C. C. Bridgewater, Jr., interviewed respondent's full-time assistant at the motor pool, Steven Carr, who confirmed that spark plugs, wires, oil, and an oil filter purchased by the county were installed in the car belonging to the sheriff's son. The assistant prosecutor recorded his interview and placed the transcribed version of it into a file after examining it for accuracy. He also placed several invoices from the motor pool purchases into that file. Eventually a hearing was held before a special inquiry judge but no charges were filed because, according to the prosecutor's testimony, he believed that respondent's dismissal was sufficient punishment for his transgressions.

Early in 1973 appellants began their investigation into the activities of the sheriff after becoming aware of deputy complaints. Two reporters, in addition to the managing editor, worked on the investigation. They contacted sheriff's deputies and the sheriff. They also consulted with the prosecuting attorney, who verified, in their entirety, the facts later appearing in the newspaper story. The sheriff was offered an opportunity to read the story before publication. Appellant Natt met again with the prosecuting attorney just prior to publication to reconfirm the accuracy of the story. However, respondent was not consulted prior to publication. Appellant Natt testified that respondent was not contacted because he was not the primary focus of the article, because appellants were satisfied with the prosecuting attorney's reliability, and because they were aware that respondent had appeared before the special inquiry judge and was under court compulsion to refrain from discussion of the incident.

Conflicting testimony was presented regarding the accuracy of the newspaper story. The trial judge ruled, as a matter of law, that respondent was not a public official under constitutional definitions of that term, and submitted the case to a jury on a negligence standard. The jury returned the $10,000 verdict.

Appellants assign error to the trial judge's determination that, as a matter of law, respondent was not a public official. Appellants urge that respondent was a public official as a matter of law. We agree.

In New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964), the United States Supreme Court recognized the necessity to balance the interest of individuals in protecting their reputations against the necessity to insure the continued free exchange of ideas mandated by the First Amendment. Finding the strict liability imposed by the common law created a potential for self-censorship of the press which "dampens the vigor and limits the variety of public debate" (New York Times at 279), the court held liability could not be imposed for statements defaming a public official concerning his official conduct absent a showing of actual malice on the part of the publisher.¹ The New York Times holding was later extended to require proof of actual malice in cases involving defamation of a "public figure", Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967), and made its furthest extension in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971). There a plurality decision focused not upon the status of the individual defamed, but rather upon the issues with which the publication was concerned, and held even a private individual could not recover for a defamatory falsehood, published in the course of comment upon an event of public or general concern, without proving actual malice. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), the Supreme Court retreated from the position established in Rosenbloom, abandoning its focus upon the nature of the event reported and accenting instead the status of the individual defamed. Gertz holds the malice standard enunciated in Rosenbloom need no longer be applied to defamatory falsehoods uttered by a publisher or broadcaster concerning a private individual and a matter of general public interest, and that

so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

Gertz v. Robert Welch, Inc., supra at 347. The Gertz decision, while altering the standard of liability applicable to private individuals, expressly recognizes the continuing vitality of both the "public official" and "public figure" doctrines and the necessity of proof of malice as to these classes of persons. See Gertz v. Robert Welch, Inc., supra at 342-43.

It is conceded by all concerned that the newspaper article here at issue involves a matter of general public concern within that publication's area of circulation. It is also clear that the record is devoid of evidence suggesting the statements concerning the respondent were published with "actual malice" as that term has been defined by New York Times and its progeny. The determination of the "status" of the respondent is thus crucial to the existence of liability on the part of the appellants. If the respondent is a private individual, he need only show negligent publication. On the other hand, if he is a public official, liability may not be imposed, for no malice has been shown.

It is a task for the court to determine, in the first instance, whether the proofs show respondent to be a public official. Rosenblatt v. Baer, 383 U.S. 75, 88, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1966). Here the trial court erred in holding the respondent to be a private individual as a matter of law and this error requires reversal of the judgment. In defining the term "public official", the courts must use constitutional, not state law or dictionary standards. In Rosenblatt, the court states at page 84:

Turning, then, to the question whether respondent was a "public official" within New York Times, we reject at the outset his suggestion that it should be answered by reference to state-law standards. States have developed definitions of "public official" for local administrative purposes, not the purposes of a national constitutional protection. If existing state-law standards reflect the purposes of New York Times, this is at best accidental. Our decision in New York Times, moreover, draws its force from the constitutional protections afforded free expression. The standards that set the scope of its principles cannot therefore be such that "the constitutional limits of free expression in the Nation would vary with state lines." Pennekamp v. Florida, 328 U.S. 331, 335.

(Footnotes omitted.)

The court in Gertz identified two factors distinguishing the public defamation plaintiffs from private. They are (1) access to the press, and (2) the assumption of the risk of greater public scrutiny attendant to public life. The court recognized the insubstantiality of the access to the press factor, and therefore placed primary emphasis upon the assumption of risk factor.

The theory behind reliance upon the access to press rationale is sufficiently flawed to justify the court's reluctance to accord it significant weight. The assumption that access to media is a remedy for harm to reputation rests on the assumption that the harmed victim will have access and that, if available, it will be adequate to undo the harm to reputation. This access to the press must be based upon purely personal power because no government enforced right to access exists for those whose character has been attacked. Such a government enforced right of access has been held to be violative of the First Amendment. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 L. Ed. 2d 730, 94 S. Ct. 2831 (1974).

There are many factors which make access to the press an extremely unpredictable event. One of these is lack of competition among the media, seriously limiting a victim's opportunity for rebuttal. Another is the media's interest in protecting its credibility. Still another is the lack of impact of rebuttal even if published, unless it reaches the same audience as the defamation reaches, is published quickly, and given equal prominence. News changes quickly and the scandal is usually more newsworthy and interesting to the public than the rebuttal. See Note, An Analysis of the Distinction Between Public Figures and Private Defamation Plaintiffs Applied to Relatives of Public Persons, 49 S. Cal. L. Rev. 1131 (1976).

The Gertz majority recognized the weakness of the "rebuttal" rationale:

Of course, an opportunity for rebuttal seldom suffices to undo harm of defamatory falsehood. Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie. But the fact that the self-help remedy of rebuttal, standing alone, is inadequate to its task does not mean that it is irrelevant to our inquiry.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 n.9, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). Self-help, as the dissent also pointed out, is "'too insubstantial a reed on which to rest a constitutional distinction.'" Gertz at 363-64 (Brennan, J., dissenting).

Due to the weakness apparent in the rebuttal theory, the majority in Gertz placed its primary reliance on the theory that private citizens, unlike public officials, do not assume the risk of public scrutiny:

More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties. . . . [T]he public's interest extends to "anything which might touch on an official's fitness for office.

Gertz v. Robert Welch, Inc., supra at 344-45.

While this broad rationale may apply to those who seek elected public office, it also furnishes the basis for liability of nonelected but nevertheless "public" employees. Public employees are involved in the business of the public and cannot expect the same degree of protection of their privacy as it relates to their work as those employed in the nonpublic sector. They do not place their personal lives before the public to the extent elected officials must under the rationale in Gertz, but, even relatively low level public employees must, nonetheless, expect a degree of public interest in the performance of their duties. This is especially true where, as here, the employees exercise unsupervised discretion in the expenditure of public funds.

The nature of the respondent's duties and responsibilities as a government employee, particularly when coupled with the potential conflicts created by his private business activities, renders him a "public official" for purposes of the New York Times rule. That term applies

at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

. . . Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees . . . the New York Times malice standards apply-13

13. . . The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.

Rosenblatt v. Baer, supra at 85-87.

The "actual malice" standard is applicable to any aspect of a public official's life which might touch on an official's fitness for his position. See Garrison v. Louisiana, 379 U.S. 64, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964). With officials wielding general power and exercising broad discretion, the scope of that standard is necessarily comprehensive, encompassing virtually all of the public official's life. See Garrison v. Louisiana, supra; Monitor Patriot Co. v. Roy, 401 U.S. 265, 28 L. Ed. 2d 35, 91 S. Ct. 621 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 28 L. Ed. 2d 57, 91 S. Ct. 628 (1971). However, with persons such as respondent, the "public official" standard fails to sweep so broadly; exposure is limited to matters more closely connected to actual job performance. In essence, we find two pertinent variables: (1) the importance of the position held, and (2) the nexus between that position and the allegedly defamatory information — specifically, how closely the defamatory material bears upon fitness for office. In comparison with other public positions carrying with them independent authority and discretion, respondent's former position is near the bottom of those that could arguably be considered "public official" positions in the First Amendment sense. However, the nexus between respondent's position and the defamatory allegations could not be closer, as they related directly to respondent's job performance. This latter fact bears heavily upon the "public official" determination in this case.

Respondent's unsupervised power to expend public funds, coupled with his maintenance of private accounts at many of the same establishments at which he made county purchases, reveals the potential for abuse. The record indicates that the respondent did in fact succumb to this temptation on a number of occasions.² The fact that this potential for abuse exists presents a matter of interest to the public, quite apart from the specific allegations of misconduct contained in the newspaper article forming the basis for this action. The public quite naturally has a legitimate and continuing interest in how local tax revenues are spent by those county employees vested with power to utilize the public purse.

The substantial body of law which has developed since New York Times is consistent with our determination here. The New York Times rule clearly applies to appointed as well as elected officials. See Time, Inc. v. Pape, 401 U.S. 279, 290, 28 L. Ed. 2d 45, 91 S. Ct. 633 (1971). This court has declared a port district commissioner to be a "public official" in this context, Chase v. Daily Record, Inc., 83 Wn.2d 37, 515 P.2d 154 (1973), and has indicated under certain circumstances police officers may be as well. Tilton v. Cowles Publishing Co., 76 Wn.2d 707, 459 P.2d 8 (1969). The United States Supreme Court has indicated the doctrine applies to the clerk of a state court, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 19 L. Ed. 2d 248, 88 S. Ct. 197 (1967). Courts of other jurisdictions have held the term applicable to a school principal, Reaves v. Foster, 200 So. 2d 453 (Miss. 1967); Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251 (1975); school teachers, Basarich v. Rodeghero, 24 Ill. App. 3d 889, 321 N.E.2d 739 (1974); the auditor for a public water works, Kruteck v. Schimmel, 27 App. Div. 2d 837, 278 N.Y.S.2d 25 (1967); a justice of the peace and his clerk, Ross v. News-Journal Co., 228 A.2d 531 (Del. 1967); police officers, Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 239 N.E.2d 837 (1968); a city-paid investigator, Bishop v. Wometco Enterprises, Inc., 235 So. 2d 759 (Fla. Ct. App. 1970); a private nursing home licensed by the state, Doctors Convalescent Center, Inc. v. East Shore Newspapers, Inc., 104 Ill. App. 2d 271, 244 N.E.2d 373 (1968); the manager of a community center, Brown v. Kitterman, 443 S.W.2d 146 (Mo. 1969); the supervisor of a branch post office, Silbowitz v. Lepper, 32 App. Div. 2d 520, 299 N.Y.S.2d 564 (1969); the chief x-ray technician of a county hospital, Fopay v. Noveroske, 31 III. App. 3d 182, 334 N.E.2d 79 (1975); a secretary hired by a public works director, Grzelak v. Calumet Publishing Co., 543 F.2d 579 (7th Cir. 1975); a social worker, Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn. 1978). See Annot., 19 A.L.R.3d 1361 (1968). Cf. Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (Tex. 1976), in which the Texas Supreme Court held a civil engineer employed on a part-time basis by a county was not a "public official," noting he could not authorize expenditure of public funds, had no direct contact with the public, did not supervise other employees, and worked under the direct supervision of others.

Having determined that the respondent is a public official for purposes of the instant suit, we need not reach the remaining issues presented to us for review.

The judgment of the trial court is reversed and the cause is remanded to the court. The plaintiff has not carried its burden of proof under the rule announced here. However, because it is unclear whether the plaintiff was on notice as to his burden in this case prior to presenting testimony, the cause is remanded to the trial court for retrial or other proceedings to be heard under the "actual malice" standard.

Stafford, Brachtenbach, Horowitz, and Dolliver, JJ., concur.

1 The court defined actual malice as making a statement "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964). The "actual malice" standard has undergone subsequent refinements. See Garrison v. Louisiana, 379 U.S. 64, 78-79, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964); St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968); Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler, 398 U.S. 6, 12-14, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (1970); Time, Inc. v. Pape, 401 U.S. 279, 290, 28 L. Ed. 2d 45, 91 S. Ct. 633 (1971).

2 While the evidence presented at trial was contradictory as to the truth of some of the specific assertions contained in the newspaper article at issue, there is substantial and essentially unrefuted evidence in the record indicating the respondent abused his position of authority and trust by such acts as working on private vehicles in the county garage and charging storage for private vehicles left in the county garage and then failing to account to the county for that revenue.