Jackson v. City of Columbus

117 Ohio St. 3d 328

• Court: Ohio Supreme Court
• Decided: March 13, 2008
• Docket: No. 2006-2096
• Status: Published

Opinions

Pfeifer, J.

{¶ 1} James Jackson, Chief of the Columbus Division of Police, appeals from a decision of the Franklin County Court of Appeals that affirmed summary judgment in favor of the city of Columbus and its former public safety director, Thomas W. Rice. Jackson claims that Rice had included a defamatory allegation about him in a report of an official investigation, conducted by Rice at the direction of the mayor of Columbus, regarding allegations of police corruption and malfeasance. Jackson contends that he has demonstrated actual malice because Rice either had a “high degree of awareness of [the published statement’s] probable falsity,” Garrison v. Louisiana (1964), 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125, or “entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson (1968), 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262. Given our duty to consider the evidence most strongly in favor of Jackson, we conclude that Rice may have acted with actual malice because at a minimum, he had a “high degree of awareness of [the published statement’s] probable falsity.” Garrison, 379 U.S. at 74, 85 S.Ct. 209, 13 L.Ed.2d 125. Accordingly, we hold that summary judgment is inappropriate and reverse the judgment of the court of appeals.

{¶ 2} Jackson has served as chief of police for the city of Columbus since 1990, and at the times relevant here, he reported to Rice, who served at the pleasure of Mayor Gregory Lashutka. In 1996, Chief Jackson reprimanded a police commander, Walter J. Burns, after investigating allegations that Burns had interfered with efforts to investigate and charge individuals involved in a Columbus-area prostitution ring. Rice considered this sanction too lenient and ordered an administrative review of Jackson’s disciplinary action. Jackson states in an affidavit that Rice never read the report that Jackson had submitted in connection with his investigation of Burns. Jackson also contends that Rice did not include Jackson’s written rationale of his decision concerning his reprimand of Burns in Rice’s report to Mayor Lashutka. Jackson also states that the city attorney reviewed Jackson’s decision and concluded that there was no evidence that Burns had committed a criminal act or had the intent to do something wrong. Rice’s report to the mayor did not mention the city attorney’s analysis.

{¶ 3} Rice subsequently learned of additional allegations regarding mismanagement by Chief Jackson and suggested to Mayor Lashutka that the situation required an official investigation into the management of the Division of Police. As a result, in October 1996, the mayor met with Jackson and Rice to discuss the situation, and the mayor presented Jackson with the option of retiring or facing a comprehensive investigation of the Division of Police. Jackson refused to resign. Consequently, the mayor announced that he had directed Rice to conduct “an examination of police misconduct relating to: (1) gambling operations * * *; (2) prostitution enterprises * * *; (3) favoritism * * *; and (4) other actions of misfeasance, malfeasance or nonfeasance which reasonably come to [Rice’s] attention in the course of [his] examination.”

{¶ 4} In June 1997, Rice presented his report of the investigation to the mayor and released it to the public. The only statement relevant to this case contained in the report is a statement attributed to Keith Lamar Jones, an inmate at the Chillicothe Correctional Institution, which alleges that Jackson had impregnated a juvenile prostitute. According to the report, Jones had a reputation of being a “scam artist,” a “liar,” and “not reliable as he uses information to his advantage.”

{¶ 5} Investigators acting on behalf of Rice had interviewed Jones about a variety of claims. As part of the interview, Jones submitted to a polygraph examination. In the opinion of the polygraph examiner, Jones “was deceptive on some of the pertinent questions and did not tell the complete truth regarding all of the questions asked, [but] some of the information provided by Mr. Jones could be accurate.” After completing the polygraph examination, the investigators questioned Jones about his claims concerning Jackson, and Jones stated that Jackson had fathered a child by a minor prostitute and was paying her child support. (If this rumor were true or even credible, the seriousness of the allegation would necessitate its referral to a county prosecutor.)

{¶ 6} The report concluded that “Jones’ deception during the polygraph examination makes his statements suspect but not completely invalid. [The examiner’s] opinion is that Jones did not tell the complete truth. That is not to say there isn’t some truth in the allegations. In Keith Jones [sic] favor is the fact that he could not have obtained the information from other law enforcement sources. In fact, Jones has repeatedly told his story to various officials by letter and by phone. The criminal allegations against [the sergeant] and the moral allegations against Jackson are unproven at this time and are dependent on evidence in the future from new sources or places.”

{¶ 7} In 2001, Jackson filed this defamation suit against the city of Columbus, Director Rice, and Mayor Lashutka based on statements contained in the report of the investigation conducted by Rice. Jackson eventually dismissed Mayor Lashutka as a party, and in 2004, the remaining defendants were granted summary judgment on some of the claims. In May 2005, the trial court entered partial summary judgment in favor of Rice and the city, determining that Rice had not acted with the actual malice necessary to defeat the qualified privilege that attached to the publication of Jones’s allegation in the report. Jackson subsequently dismissed the remaining claims, and the trial court thereafter entered final judgment in favor of Rice and the city of Columbus.

{¶ 8} Jackson appealed, contending that Rice had acted with actual malice in publishing the rumor that Jackson had impregnated a juvenile prostitute. The court of appeals affirmed the decision of the trial court, holding that a public-interest privilege applied. Jackson now appeals to this court, and we have agreed to review the following proposition of law: “A publisher commits defamation by publishing the defamatory statements of a third party when the publisher has a high degree of awareness of the probable falsity of those statements.” Jackson v. Columbus, 112 Ohio St.3d 1489, 2007-Ohio-724, 862 N.E.2d 116. Jackson urges this court to follow the holdings in Garrison, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125, and St. Amant, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262, which establish that a publisher of defamatory statements acts with actual malice when the publisher has a high degree of awareness of the probable falsity of those statements, thus defeating any qualified privilege. Jackson further contends that a material issue of fact exists with respect to whether Rice was aware of the falsity of Jones’s allegations and whether Rice was motivated by ill will, spite, or hatred when publishing those allegations. Rice counters that he did not act with actual malice, because he had an obligation to include Jones’s allegation in the official report and because he did not present that allegation as fact. He further urges us to recognize a new public-interest privilege that bars liability for publication of a third party’s defamatory statement against a public official unless the claimant demonstrates actual malice with respect to whether the third party had made the statements, not with respect to whether the statements themselves were true or false.

{¶ 9} In Ohio, defamation occurs when a publication contains a false statement “made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.” A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Const. Trades Council (1995), 73 Ohio St.3d 1, 7, 651 N.E.2d 1283. See Hahn v. Kotten (1975), 43 Ohio St.2d 237, 243, 72 O.O.2d 134, 331 N.E.2d 713. If a claimant establishes a prima facie case of defamation, a defendant may then invoke a conditional or qualified privilege. A & B-Abell, 73 Ohio St.3d at 7, 651 N.E.2d 1283, citing Hahn, 43 Ohio St.2d at 243, 72 O.O.2d 134, 331 N.E.2d 713. In Hahn, we stated, “The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.” 43 Ohio St.2d at 246, 72 O.O.2d 134, 331 N.E.2d 713. See New York Times Co. v. Sullivan (1964), 376 U.S. 254, 283, 84 S.Ct. 710, 11 L.Ed.2d 686 (proof of actual malice is required when a public official brings a defamation claim); Garrison, 379 U.S. at 77, 85 S.Ct. 209, 13 L.Ed.2d 125, (the privilege applies to “anything which might touch on an official’s fitness for office”). A qualified privilege may be defeated only if a claimant proves with convincing clarity that a publisher acted with actual malice. Jacobs v. Frank (1991), 60 Ohio St.3d 111, 573 N.E.2d 609, paragraph two of the syllabus. Thus, actual malice in the context of a defamation action constitutes an “abuse of privilege.” A & B-Abell, 73 Ohio St.3d at 11, 651 N.E.2d 1283.

{¶ 10} “In a qualified privilege case, ‘actual malice’ is defined as acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity.” Jacobs, 60 Ohio St.3d 111, 573 N.E.2d 609, paragraph two of the syllabus. The phrase “reckless disregard” applies when a publisher of defamatory statements acts with a “high degree of awareness of their probable falsity,” Garrison, 379 U.S. at 74, 85 S.Ct. 209, 13 L.Ed.2d 125, or when the publisher “in fact entertained serious doubts as to the truth of his publication,” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323, 20 L.Ed.2d 262. See Perez v. Scripps-Howard Broadcasting Co. (1988), 35 Ohio St.3d 215, 218, 520 N.E.2d 198.

{¶ 11} “In ruling upon defendant’s motion for summary judgment in a libel action brought by a public official, the court shall consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff to determine whether a reasonable jury could find actual malice with convincing clarity.” Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116, 18 O.O.3d 354, 413 N.E.2d 1187, paragraph one of the syllabus. See Perez, 35 Ohio St.3d at 218, 520 N.E.2d 198. Thus, even though we are applying a heightened “convincing clarity” standard, we must construe all evidence in this case most strongly in favor of Jackson, the nonmoving party. See Civ.R. 56(C) (“summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor”).

{¶ 12} We now review the record to determine whether there is sufficient evidence to permit a finding of actual malice as a matter of law. See Perez, 35 Ohio St.3d at 218, 520 N.E.2d 198. Jackson is a public official and therefore has the burden, at trial, of proving with convincing clarity that Rice abused the qualified privilege by repubhshing Jones’s allegations with actual malice. On summary judgment, however, Jackson is entitled to have all evidence construed most strongly in his favor. See Civ.R. 56(C). Rice conducted an investigation at the behest of Mayor Lashutka into allegations of police misconduct, but his role as investigator did not grant him license to publish unsubstantiated rumors if he “in fact entertained serious doubts as to [their] truth.” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323, 20 L.Ed.2d 262. See id. at 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (“recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports”). The 184-page report submitted by Rice to the mayor categorized the rumor that is the subject of this lawsuit as “unproven” and “suspect.” The report stated that the source of the rumor was unreliable and a “liar” and “scam artist.” The report and the 969 pages of exhibits in the report’s appendix give the appearance of thoroughness. According to Jackson, however, Rice did not interview him before submitting the report to the mayor. Jackson also asserts in an affidavit that Rice did not ask him about Jones’s allegation or inquire of anyone other than Jones about the allegation. If Rice had asked, Jackson would have informed him that a vasectomy had rendered him incapable of impregnating anyone. Construing the evidence most strongly in Jackson’s favor, as we must when reviewing a summary judgment motion, we conclude that the evidence could support a determination that Rice had a “high degree of awareness of [the statement’s] probable falsity,” Garrison, 379 U.S. at 74, 85 S.Ct. 209, 13 L.Ed.2d 125, or that Rice “entertained serious doubts as to the truth of his publication.” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323, 20 L.Ed.2d 262. Accordingly, the trial court improperly entered summary judgment in this case, and we reverse the judgment of the court of appeals and remand this case for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

O’Connor, Lanzinger, and Cupp, JJ. concur. Moyer, C.J., and Lundberg Stratton and O’Donnell, JJ., dissent.