Herron v. KING Broadcasting Co.

746 P.2d 295, 109 Wash. 2d 514
CourtWashington Supreme Court
DecidedDecember 3, 1987
Docket52342-8
StatusPublished
Cited by49 cases

This text of 746 P.2d 295 (Herron v. KING Broadcasting Co.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herron v. KING Broadcasting Co., 746 P.2d 295, 109 Wash. 2d 514 (Wash. 1987).

Opinions

Dore, J. —

Appellants appeal the summary judgment dismissal of their defamation action. We hold that the story that respondents broadcast in the early evening newscast of December 1, 1978 was materially false, and that appellants presented sufficient evidence for a trial on the issue of actual malice. We reverse.

Facts

The background of this case was a racketeering scandal of proportions unprecedented in this state which attracted intensive media attention. On November 28, 1978 the Pierce County Sheriff and seven others were arrested on racketeering charges. In connection with those charges, there was a federal probe into a series of Pierce County arson fires. In addition to those stories, the media reported that a local bail bondsman and one of the persons arrested, Lamont Zemek, had been vacationing earlier that month with a local district court judge and the Prosecuting Attorney of Pierce County, Don Herron. Herron had practiced law in both the public and private sectors since March 1959, until he was elected as Pierce County Prosecuting Attorney in 1975. Before the racketeering scandal, and the news broadcast linking him to that scandal which is the subject of this lawsuit, Herron had never come under scrutiny by the local or Washington State Bar Associations.

Respondent Don McGaffin was a news reporter with KING Broadcasting Company, better known as KING TV Channel 5. On December 1, 1978, McGaffin wrote and broadcast on KING TV a story that is the subject of the instant suit.

[516]*516Sometime in mid to late November 1978, McGaffin had received an anonymous telephone call stating that the Pierce County Prosecutor's Office was under investigation by the FBI for improper bail bond procedures. McGaffin tried to contact Herron, by phone and in person, but was unable to obtain an interview. During a visit to the prosecutor's office he had a brief discussion with Deputy Prosecutor Terry Sebring, who confirmed that the office was under investigation by the FBI regarding bail bond forfeitures. Sebring would not give more information, however, due to the continuing investigation. McGaffin's response was very hostile. Sebring swore in an affidavit as follows:

McGaffin then stepped very close within a foot of me with his face showing of anger and said, "You mean to tell me that you will not talk to me about bailbond procedures even in general?" I replied, "I have given you my statement. The records are public information in the Clerk's Office."
He then said, "what happens after the bench warrant is issue? [sic]" I replied, "You are asking me a question I am not discussing further." He then said with his face close to mine and lowered his voice, "You will regret doing this (indicating refusing to answer his questions). I will get you (could have been 'fix you'). Just watch the news".

Clerk's Papers, at 262-63. McGaffin's hostility was corroborated by witnesses to the scene, reporter Barbara Anderson and receptionist Maria Chantrey, who heard Mc-Gaffin's loud "parting shot": "Watch the (evening) news, Sebring". McGaffin denies any threat or animosity toward Herron.

McGaffin next interviewed the Pierce County Superior Court Clerk, who supplied statistics on bail bond forfeitures collected from local bondsmen. McGaffin also spoke briefly with at least one Pierce County judge about bond forfeitures.

McGaffin contacted former Pierce County Prosecutor Ron Hendry, and one of Hendry's former deputies, Douglas McBroom. In an election characterized as "unusually bit[517]*517ter," Herron had defeated Hendry in 1974. McGaffin claims that they discussed bail bond forfeiture procedures as well as the contributions made by bail bondsmen to Don Her-ron's 1974 campaign, and that one of the two told him that approximately half of Herron's 1974 campaign contributions originated from bail bondsmen.

Neither Hendry nor McBroom believes he made such a statement. Although he remembers a discussion with McGaffin, Hendry cannot specifically recall whether they discussed bail bonds or bail bondsmen's contributions to Herron's campaign. Hendry was certain, however, that he did not tell McGaffin that "approximately half" of Herron's contributions came from bail bond interests because he knew otherwise. Hendry testified in a deposition as follows:

Q. Would you have told Mr. McGaffin that over half the money collected by Mr. Herron in his campaign to defeat you was supplied by the bail bond interests of Pierce County?
A. No.
Q. Would you have said approximately under one-half?
A. No.
Q. Okay, why wouldn't you have used those words?
A. My recollection from the campaign is that the bail bond contributions to Mr. Herron's campaign were in the neighborhood of $1,500.
Q. If Mr. McGaffin would have asked you how much you thought the bail bond interests would have contributed to Mr. Herron's campaign, what would you have told him? $1,500?
A. Yes.

McBroom similarly does not remember the topic of his conversation with McGaffin. Although he testified candidly that he had no specific recollection of whether or not he told McGaffin that Herron had raised a $120,000 campaign fund, he stated, "I certainly don't believe I told him that. I didn't know how much Mr. Herron raised at that point. I don't know if I ever knew how much Mr. Herron raised." Answering a question as to whether he told McGaffin or other reporters that over half or approximately half of Herron's campaign contributions came from bail bond [518]*518interests, McBroom responded similarly: "I don't think that I probably, I'm sure I didn't know."

McGaffin also looked at the Public Disclosure Commission's campaign contribution reports for Herron. The reports list contributors by name, and state the amount contributed next to each name. The reports reveal that the total contributions for Herron's 1974 campaign were approximately $38,000, of which only $825 was contributed by bondsmen. McGaffin could not have determined that approximately half of Herron's campaign contributions came from bail bondsmen from those reports.

McGaffin wrote a story which he read during the 5:30 p.m. newscast on December 1, 1978. It stated:

The Prosecutor's office in Pierce County has ... it has been confirmed that the FBI is being investigated by the Prosecutor's Office in Pierce County [sic]. The FBI agents are questioning the Chief Prosecutor, Don Herron, and his deputies about bail bond procedures. Bondsmen John Carbone and Ron Williams are two of the eight men arrested and charged by the Justice Department on racketeering charges this week. Carbone heavily contributed to Herron's election campaign four years ago and again in 1978. Also arrested for racketeering was Herron's close friend and vacation companion, Lamont Zemek. Zemek's ex-wife, Nina Zemek, is Herron's long-time administrative aide. The FBI wants to know how Herron and the Pierce County Prosecutor's Office collected forfeited bail bonds, particularly from bondsmen Carbone and Williams. That was confirmed for KING-5 News today when Deputy Prosecutor Terry Sebring told me that he could not discuss bail bond matters. He said it would be inappropriate because his department is being questioned by the FBI and other Justice Department officials.

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Bluebook (online)
746 P.2d 295, 109 Wash. 2d 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herron-v-king-broadcasting-co-wash-1987.