McMurry v. Howard Publications, Inc.

612 P.2d 14, 6 Media L. Rep. (BNA) 1814, 1980 Wyo. LEXIS 280

• Court: Wyoming Supreme Court
• Decided: June 2, 1980
• Docket: 5050
• Status: Published

Opinions

THOMAS, Justice.

This is a companion case to MacGuire v. Harriscope Broadcasting Co., Wyo., 612 P.2d 830 (1980). The cases were consolidated for argument. Like its companion case, the primary issue here is the application of the actual-malice rule of New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964), in connection with a motion for summary judgment by the publisher of allegedly defamatory material. By brief and argument the appellees presented alternative bases for sustaining the trial court’s judgment. We do not consider those alternative propositions because we conclude that the rules of law set forth in MacGuire v. Harriscope Broadcasting Co., supra, are applicable and dispositive. We will affirm the judgment of the district court.

The appellant, who was the plaintiff in the trial court, Neil McMurry, is the same individual who' was also an appellant in MacGuire v. Harriscope Broadcasting Co., supra. He served as a member of the Na-trona County Airport Board from 1974 through the period of the accused publications in this case, the last of which was published on September 30,1976. Here also there is no question that McMurry is a public official for purposes of invoking the rule of New York Times Co. v. Sullivan, supra, and the additional rules of law set forth in MacGuire v. Harriscope Broadcasting Co., supra.

The appellees, who were defendants in the district court, include the publishing company, the editor and publisher, the managing editor and the state editor of the Casper Star-Tribune. Howard Publications, Inc., owns and operates the Casper Star-Tribune. Thomas W. Howard is the editor and publisher of the newspaper, Phil McAu-ley is the managing editor, and Dan Partridge is the state editor. McMurry alleges in his complaint that the Casper Star-Tribune is the largest newspaper in the State of Wyoming and the only nev/spaper of general circulation in the Casper area. In July of 1976 a series of news articles and some editorial commentaries were published in the Casper Star-Tribune relating to various aspects of the operation of the Natrona County International Airport. The news articles included such topics as the awarding of a contract to a former board member for harvesting hay on the airport; the sale of water by the airport to the same former board member; the utilization of off-duty airport personnel to build a home by a son of a former manager, and the granting of discounts on construction materials purchased in connection with that home because of the assumption that the materials were purchased for the airport; the lease of an airport hangar by board member John MacGuire, and an apparent conflict of interest on the part of MacGuire’s attorney who also was attorney for the airport board; and the utilization of airport buildings without charge by employees of the airport.

Another series of articles related to an investigation of the activities at Natrona County International Airport by the county attorney; his conclusion that no charges would be filed as a result of that investigation; a suggestion that a further investigation would be conducted by the State Attorney General; the declination by the attorney general of any further investigation; and a decision by the chairman of the airport board to not attempt to pursue a private investigation. There was also an article on the decision to increase wages for 11 employees who also served as members of the voluntary fire department at the Natro-na County Airport. Two other articles concerned the announcement by the chairman of the board of county commissioners that he would consider an independent investigation, and the resignation of the airport manager. Many of the articles discussed apparent improprieties in connection with the conduct of the business of the Natrona County International Airport.

McMurry’s libel action was based upon statements contained in three editorials published on August 15, 1976, September 3, 1976, and September 30, 1976. The text of these editorials is appended as Appendix A (September 3, 1976); Appendix B (September 30, 1976); and Appendix C (August 15, 1976).

McMurry complains of specific language from the texts of these editorials in the six counts of his complaint. The accused language in these six counts reads as follows:

COUNT I

“The Natrona County International Airport Board continues to operate on a collision course. It is rudder-less, seeking a mooring but finding none, and out of control.

“Shocking new revelation is heaped upon revelation. It is apparent to the public that nothing is being done except patchwork of the most temporary sort. “Arrogance, surliness, coupled to the persistent insistence that the airport operation is none of the public’s business and just who does the press presume to be to question our operations? are the over-riding attitudes of several members of the Airport Board.

“We thoroughly dislike blanket indicte-ments [sic] so we make it clear that we do not include Airport Board member Bob Heizer in this criticism.

“In the best ideals of public service, he was called upon to serve on the board and he accepted. We wonder now how often Mr. Heizer has pondered why he accepted his public trust and be subjected to the frustrations — essentially a voice alone— in attempting to provide some direction to a board hopelessly off course. He is trying to get these appointed board members he must work with to operate in a business-like manner for the benefit of the taxpayers.

“It is a difficult, if not hopeless, task.”

COUNT II

“The troubles at the airport are deep. They are being treated quickly and cosmetically with no attempt to get to the source of the troubles.

“They began years ago by being a super-board; they have been compounded under the leadership of former Board President MacGuire. He performed essentially like a one-man band — hiring, firing, making administrative and policy decisions rubber stamped by the board. He remains reluctant to relinquish what he considers his preogative [sic].

“What is to be done?

“If the County Attorney and the Wyoming Attorney General obstinately refuse to do their public duty and determine just what is wrong with the airport operations, use public funds to employ private investigators. Give them a free hand to determine what is wrong with the operations and then let them make recommendations which must be carried out.”

COUNT III

“How much ignorance of the law, coupled in arrogance are the people of Natrona County going to be subjected to from its elected officials? We’re referring to [sic] latest episode in a long series of eye-opening developments involving the elected Natrona County Board of County Commissioners, the appointed Natrona County Airport Board, and the Natrona County Attorney’s office.

“. . . Past actions included entering into a contract for hangar space with a member of the Airport Board and past president, John MacGuire, to lease space to conduct his private business.

“Despite these past actions, and loss of public confidence, it’s obvious that the County Commissioners, Airport Board, County Attorney, and the Airport Board manager plan to continue to operate its policy of the public be damned.

“Such actions by elected and appointed officials are repugnant since they ignor [sic] public trust, duty and responsibility.”

COUNT IV

“It remains incomprehensible to us that the Airport Board, obviously with the approval of the County Commissioners and County Attorney, continues to operate as a separate entity. It indicates that the County Commissioners and County Attorney are afraid of what a private investigation might unearth.”

COUNT V

“The combined actions of the three boards is an arrogant extension of the public be damned attitude as expressed by Airport Board member MacGuire’s succinct but obscene response of ‘Screw em’ when he was asked by the Casper Star-Tribune about his responsibilities to the public board.

“With the tacit approval of the County Commissioners, this will obviously continue to be the attitude of the Airport Board.”

COUNT VI

“Come to the point, gentlemen. Do your duty. Don’t play the public for suckers. Is there anyone being protected? Do you feel you are incompetent to conduct such an investigation? Why is the State, with all of its resources, incapable of conducting an impartial investigation?”

As also was true in MacGuire v. Harriscope Broadcasting Co., supra, McMurry limits the issue presented to this court to the sufficiency of showing actual malice under the rule of New York Times Co. v. Sullivan, supra. He states the issue as follows:

“Whether the evidence, taken in the light most favorable to Appellants [sic] and drawing all reasonable inferences therefrom, could establish by a preponderance of the evidence that the statements were libelous statements of and concerning the Appellants [sic] and could establish with convincing clarity that the statements were published with actual malice.” (Emphasis added.)

The appellees state the issue in the following language:

“Was it error for the trial court to grant a summary judgment in favor of the defendants, where the evidence offered by defendants established that there was no issue of material fact, and the plaintiff, a public official, was unable to offer evidence of a sufficient quantum to establish a prima facie case, and the offered evidence did not contain the standard of convincing clarity?”

We will not repeat in detail here the legal principles incorporated in MacGuire v. Harriscope Broadcasting Co., supra. A brief summarization is sufficient. When defendants in a libel action, which is governed by the standards of New York Times Co. v. Sullivan, supra, submit a motion for summary judgment the trial court must analyze the evidentiary matters presented by the plaintiff under the standard of “convincing clarity” promulgated in the New York Times case. A genuine issue of material fact is present only when after viewing those matters in the light most favorable to the plaintiff the court is persuaded that the trier of fact could find under the standard of “convincing clarity” the presence of actual malice, i. e., knowledge of the falsity of the published information or publication with reckless disregard of whether it was false or not. If the evidentiary matters presented at the trial court would not justify submission of the ease to the trier of fact pursuant to the standard of “convincing clarity,” they then must be considered insufficient to raise a genuine issue of material fact at the summary-judgment stage of the proceedings. MacGuire v. Harriscope Broadcasting Co., supra.

The trial court in this instance found that the evidentiary matter in the record relied upon by McMurry was insufficient to present a genuine issue of material fact as to actual knowledge of falsity or publication with reckless disregard of whether the matter was false or not. Our analysis of the record is consistent with that of the district judge. The evidence which McMur-ry relies upon, as we said in MacGuire v. Harriscope Broadcasting Co., supra, 612 P.2d at p. 839, is “far short of the style of evidence from which any mind could readily reach a satisfactory conclusion as to the existence of actual malice.”

Here, as in MacGuire v. Harriscope Broadcasting Co., supra, the closest showing of any awareness of probable falsity can be found not only in the affidavit of the manager of Natrona County International Airport but also in testimony by the president of the airport board to the effect that when John MacGuire said, “Screw ’em” he was not referring to the public but to the individual appellees McAuley and Partridge. The contention is that McAuley and Partridge both knew that to be the fact and yet in the September 3, 1976, editorial they continued to rely upon a false statement of fact in making their editorial comment. In their affidavits, however, both McAuley and Partridge stated in substance that at the time the comment was made and at the time of the execution of the affidavits they believed that the reply was made to McAu-ley’s question about MacGuire benefiting from the taxpayers’ money.

While, as we noted in MacGuire v. Harriscope Broadcasting Co., supra, the testimony of the publishers is not to be controlling with respect to their knowledge or state of mind, it cannot be ignored when it is not refuted. Here we find no evidence to demonstrate subjective awareness by the appellees that their perception of the events at the airport board meeting when that comment was made was not correct. While they might have been free to accept the version of those events claimed by McMurry they were not required to do so. A subjective awareness of probable falsity cannot be demonstrated under the standard of “convincing clarity” by evidence showing that the publisher and the plaintiff disagreed with respect to their perceptions of events which they both observed. This rule is consistent with those applications of the doctrine of New York Times Co. v. Sullivan, supra, which excuse the publisher from investigation even when a claim of falsity is called to the publisher’s attention. Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

In this case the appellee also argues that the summary judgment granted by the trial court can be justified on the ground that what was published were expressions of comment and opinion privileged under the First and Fourteenth Amendments to the Constitution of the United States, or alternatively that the words are not actionable because they do not refer specifically to McMurry and his proof is inadequate to show that the words complained of related to him. We do not treat with these alternative grounds for sustaining the district court because of our conclusion that McMurry has failed to meet his burden of demonstrating evidence of actual malice at the summary-judgment stage, and therefore the judgment of the district court must be affirmed. The other issues then are not material to the disposition of the appeal.

The judgment of the trial court is affirmed.