Price v. Walters

1996 OK 63, 918 P.2d 1370, 67 O.B.A.J. 1818, 1996 Okla. LEXIS 76, 1996 WL 267500

• Court: Supreme Court of Oklahoma
• Decided: May 21, 1996
• Docket: 78483
• Status: Published

Opinions

SIMMS, Justice.

William S. Price, Candidate for Governor on the Republican ticket in the 1990 election, brought a defamation action against David Lee Walters, the Democrat Candidate, and Don Hoover, Walter’s media assistant, three weeks prior to the general election. This action arose from a press release issued by Walters and Hoover some eight days prior to the filing of the defamation action.

The trial judge sustained defendants’ motion for summary judgment for the reason the press release was privileged under the provisions of 12 O.S.1991, § 1443.1, infra. Plaintiff Price timely perfected this appeal.

FACTS

The alleged defamatory publication concerns Price’s involvement in federal court litigation, during the period he held the positions of First Assistant United State Attorney and United States Attorney for the Western District of Oklahoma. A detailed recitation of the factual background of the federal litigation is necessary to a determination of the controversy.

During a period in which federal “Mandatory Price and Allocation Regulations” for crude oil and petroleum products were in effect, Seneca Oil Company was an independent producer of crude oil and natural gas in Oklahoma. The regulations included price ceilings for the sale of crude oil but exempted “newly discovered crude oil” from the price ceiling regulations. “Newly discovered crude oil” was defined as crude oil “produced ... from a property from which no crude oil was produced in the calendar year 1978.” In re Seneca Oil Co., 906 F.2d 1445, 1448 (10th Cir.1990). Penalties for violating the regulations included restitution, or fine and imprisonment. 15 UH.C. § 754. The oil price controls were discontinued in 1981. However, enforcement action for past violations continued under a savings clause. Id.

In 1977 and 1978, Seneca conducted test drilling on five properties in Oklahoma and sold the “test oil” that it recovered. Id. Taking the position that the crude oil regulations only applied to production in commercial quantities, Seneca certified that oil produced from the five properties after 1978 was “newly discovered crude oil.” Seneca charged market-price for that oil from November 1979 to December 1980, and it set aside in a suspense account the difference between the market price it charged and the regulated ceiling price. Id.

In July 1980, the Office of the General Counsel of the U.S. Department of Energy (DOE) issued Interpretive Ruling 1980-3, stating that the term “produced” in the regulations meant produced in “any ” quantity in 1978. Id. at 1449. In February 1981, Seneca, as wells operator, sought injunctive and declaratory relief against enforcement of Ruling 1980-3 in the United States District Court for the Western District of Oklahoma.

Price was a trustee for his parents’ trusts, and as trustee, was named a party plaintiff in Seneca’s lawsuit, along with other oil companies and individual working interest owners. The Price trusts had interests in the Oklahoma property. Seneca suspended a portion of disbursements to royalty and working interest owners from its sales of crude oil in an amount equal to the difference between the market price and the ceiling price. 906 F.2d at 1448 n. 2. Thus, the record indicates that the trusts had an interest in the suspense fund and would benefit financially from Seneca’s successful challenge to the regulation. At the time the action was filed, Price was serving as First Assistant United States Attorney in the Western District. Price became United States Attorney in 1982.

The federal district court granted relief to the plaintiffs and DOE appealed. After finding several of the plaintiffs’ appellate contentions to be without merit, Seneca Oil Co. v. Department of Energy, 712 F.2d 1384, 1399-1400 (Temp.Emer.Ct.App.1983), the appellate court (TECA) reversed the district court, holding that the pricing regulations were valid and that the oil produced from the Oklahoma properties was miscertified as “newly discovered.” The federal appellate court directed the district court “to grant the motion of appellants [DOE and the Secretary of Energy] for summary judgment, and to grant motions for appropriate orders to secure recovery from appellees of the overcharges in violation of Ruling 1980-3 and the May 2, 1979 legislative regulation, interest thereon and costs.” Id. at 1402 (emphasis added). Significantly, the order does not distinguish between Seneca, the other oil company appellees, or the individual working-interest owner appellees. No party appealed.

The U.S. Attorney’s office in the Western District received the mandate from the federal appellate court but sought judgment on behalf of the DOE against Seneca only. Seneca filed for bankruptcy before judgment was entered in favor of the DOE. At the date of the bankruptcy, the overcharges plus interest totaled $1,741,597.77. However, there was only $1,282,706.95 in Seneca’s contingency fund at that time because Seneca had used moneys to pay windfall profit taxes and state severance taxes. In re Seneca, 906 F.2d at 1449 n. 5.

DOE sought to have a constructive trust declared, and, ultimately, the Tenth Circuit Court of Appeals imposed such a trust in Seneca’s bankruptcy proceedings finding that Seneca had “violated federal law by overcharging for oil, which is more wrongdoing that the typical creditor-debtor situation.” Id. at 1451. The Tenth Circuit noted that money recovered by the DOE in the case would “compensate overcharged purchasers” and be distributed as ‘“indirect restitution’ to states for energy conversation programs and the Federal treasury.” Id. at 1456.

In 1989, Price resigned as U.S. Attorney to enter the 1990 Oklahoma gubernatorial race. The campaign was not a placid one and intensified as the general election approached. In press releases issued between September 20, 1990 and October 3, 1990, Price accused Walters of ethical violations in the 1986 gubernatorial campaign and claimed that Walters had no philosophical backbone and no political integrity. On September 20,1990, a front page headline in the Daily Oklahoman read: “Bloodbath Hinted in Race For Governor.” That paper quoted Price as warning Walters: “If you can’t stand the heat, get out of the kitchen.” A September 23, 1990, headline in the Tulsa World read: “Price-Waiters Race Shaping Up to be Down, Dirty.”

During his campaigning, Price claimed that, as U.S. Attorney, he was the most investigated candidate for Governor in history: “There is nothing in my background or financial activities that have ever raised a question.” The Walters campaign hired an out-of-state independent consultant, Research, Inc., to conduct opposition research.

Jackie Koenig, a Research Inc. employee, came to Oklahoma and discovered references to Price in certain federal court litigation while conducting research at the federal courthouse in Oklahoma City. She obtained copies of the court records, and took them back to California with her.

Mike Carrier was an employee in Don Hoover’s office in Oklahoma City. At Hoover’s request, Carrier telephoned Koenig on October 7, 1990, and, after they talked, he told her that he wanted to issue a press release regarding the federal litigation. Carrier again spoke to Koenig on the morning of October 8, and he asked Koenig to summarize her findings so that he could incorporate them into a press release to be issued that morning. Carrier drafted the press release after taking notes of Koenig’s findings. Koe-nig testified at deposition to the effect that the press release’s emphasis upon Price, rather than Seneca Oil Company, an independent producer of oil and natural gas in Oklahoma, and operator of the wells in which Price, as trustee, had an interest, was contrary to her report.

Neither Walters nor Hoover had any contact with Koenig about her research, and they did not research or investigate the federal litigation themselves. Hoover made some stylistic changes to the press release and approved Carrier’s final draft. Walters was in Tulsa, and Hoover read the press release to him over the telephone. After Walters approved the press release for publication, Hoover distributed it to the press.

The press release headline read: “Price Broke Law, Fined $1.74 million By Federal Government.” Immediately below, another headline stated: “GOP Gouged Consumers At Gas Pump While Working As Federal Lawyer.” The text of the press release continued:

“While working as a federal prosecutor and being sworn to uphold the laws of the country, GOP gubernatorial candidate Bill Price was fined $1.74 million for gouging consumers by selling oil at higher than allowable prices.

Court documents on file in Oklahoma City and Fort Worth on case CV 81-215 and a later bankruptcy case reveal Price and a group of oil companies and investors were found guilty by two courts and the U.S. Department of Energy of violating federal oil price guidelines in the late 1970’s.

‘We now know what type of businessman Bill Price is,’ said Democratic gubernatorial candidate David Walters. ‘He has been accused and found guilty by the very courts he worked in.’

Walters said Price’s dealings even go as far as a direct conflict of interest, — being a plaintiff and a defendant in the case and being responsible for the government’s case against himself after being named U.S. Attorney.”

The press release states that Price, acting as trustee for one of his parents’ trusts, and eleven other defendants including Seneca, were found guilty of overcharging consumers as much as $26.80 per barrel for oil when the defendants sold oil from five properties in Major County, Oklahoma in 1978 and 1979. The press release further stated that court documents showed that Price and his family trust were “working interest owners in various of the five properties ... sharing in the revenues from the shares of crude oil produced on these properties.” The release states that the U.S. Department of Energy fined Price and the others for overcharging more than the legally allowable per barrel amount of approximately $14.00, and according to court documents, defendants repeatedly fought against repaying the overcharges.

The release next stated that Seneca filed bankruptcy but the battle to avoid paying the judgment continued, and the release referred to one federal document where the federal lawyers charged that the defendants were improperly shuffling “money in and out of what the government believes is a trust account set up” to pay the judgment. The release states that the U.S. Department of Energy filed suit to force the defendants to pay the judgment, and the 10th Circuit Court of Appeals ruled in June 1990 that the judgment should be paid. Again, the press release referred to a court document where the court said the defendants “violated federal law by overcharging for oil, which is more wrongdoing than the typical creditor-debtor situation.”

The press release concludes with quotes from Walters:

‘“Bill Price has based his campaign on his record as a law-abiding U.S. Attorney and as a businessman,’ Walters said.

‘Well, this is his record — a $1.74 million fine for gouging consumers and driving up the price of gasoline and being financially tied to a firm that filed bankruptcy,’ Walters said.

“What other skeletons are in Bill Price’s closet?’ Walters asked.”

I.

CONTENTIONS ON APPEAL

On appeal from the trial court’s grant of summary judgment, Price claims that there were factual controversies over whether (1) the press release was privileged; (2) whether the press release was a fair and substantially accurate report of judicial proceedings; (3) whether the press release was an expression of opinion regarding a judicial proceeding; (4) whether the press release is a criticism upon any official act of appellant; (5) whether the press release falsely imputes a crime to him; and, (6) whether defendants acted with malice. He argues that the federal court proceedings do not support the allegations in the press release, and attacks the headlines of the press release and the use of the terms “broke the law”, “violated federal law”, “accused”, “defendant”, “found guilty” and “involved in a direct conflict of interest” as libelous per se. Price’s claim of libel per se is grounded upon the contention that the language of the press release “engenders in the mind of the reader a conclusion, impression, or opinion of plaintiff that is defamatory ...” Winters v. Morgan, 576 P.2d 1152, 1154 (Okla.1978). This rule, of course, would not apply to privileged speech. Because we find below that the statements were privileged we need not address Price’s assertion of libel per se.

On the other hand, Defendants point out that working interest owners did own a considerable percentage of Seneca’s suspense fund — this percentage of ownership being determined by the percentage of ownership of the crude oil that Seneca sold on their behalf. Defendants also point out that the TECA judgment pertained to all named appellees, but the U.S. Attorney’s Office — where Plaintiff was the U.S. Attorney — did not seek recovery against the working interest owner appellees, and, thus, did not carry out the mandate as directed.

Defendants maintain that the press release appropriately called attention to Price’s conflict of interest, which was apparent on the face of the federal documents. Plaintiff states in his brief in chief that he recused himself from the case and “did not appear to act with any impropriety.” However, Defendants maintain that the court documents do not show that he followed recusal procedures. According to Defendants, the working interest owners wanted to keep the funds obtained through illegal overcharges and they ratified the crude oil miseertifications by joining in Seneca’s lawsuit. Defendants claim that Price was trustee of his family’s trust and his liability under the TECA ruling was in proportion to his family’s interest in the suspense fund. They further claim that Price could have refused to join in the lawsuit or dismissed his claims but did neither. Finally, Defendants claim that Plaintiff was “trying to prove the press release untrue by ignoring the TECA mandate and focusing on the U.S. Attorneys’ incomplete fulfillment of the mandate.”

To this, Price responds that “[f]or some reason unknown ... he was named as the trustee for the trusts when the working interest owners joined Seneca in its suit against the DOE.” And, the TECA’s mandate to recover overcharges from “appellees” was “interpreted” by the DOE as meaning only Seneca and the other oil company appel-lees.

II.

THE ISSUE OF PRIVILEGE

Although the summary judgment motion presented two bases purportedly entitling Defendants to judgment, the trial court found that the action was barred based upon statutory privilege. Title 12 O.S.1991, § 1443.1, provides, in pertinent part:

“A. A privileged publication or communication is one made:

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Third. By a fair and true report of any legislative or judicial or other proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and, criticisms thereon, and any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or of the officer, falsely imputes crime to the officer so criticized.

B. No publication which under this section would be privileged shall be punishable as libel.” (Emphasis added)

In Crittendon v. Combined Communications Corp., 714 P.2d 1026 (Okla.1986), this Court upheld our well-settled rule that where the circumstances of a publication are not in dispute, the issue of whether the publication was privileged under section 1443.1 is a question of law for the court. There a physician brought a defamation action against a television station for allegedly libelous broadcasts concerning a report of a hearing where default judgment was entered against him for malpractice. We held the trial court committed reversible error in submitting the question of statutory privilege to the jury, thereby reaffirming our allegiance to the general rule adopted in Tuohy v. Halsell, 35 Okla. 61, 128 P. 126 (1912), and Cobb v. Oklahoma Publishing Co., 42 Okla. 314, 140 P. 1079 (1914), that:

“The rule in such cases is that, where there is no dispute as to the circumstances under which a publication is made — that is, where there is no dispute as to what the publication was, what it was about, and who made it — or where the language in the publication is plain and unambiguous, it is a question of law for the court to deter.mine whether or not such publication was privileged.” 714 P.2d at 1028 (quoting Cobb v. Oklahoma Publishing Co., supra).

We then determined as a matter of law that the broadcasts were substantially accurate and therefore privileged under 12 O.S. 1981, § 1443.1 as a fair and true report of the proceeding.

Defendants do not dispute publication of the press release. See McCutcheon v. State, 746 P.2d 461 (Alaska 1987); Munafo v. Helfand, 140 F.Supp. 234 (S.D.N.Y.1956). Likewise, the content of the press release, who made it and what it is about, is not in dispute. The court documents show that Price was a named party plaintiff in litigation, where the plaintiffs sought to retain benefit of sales of crude oil at market price, and a federal court found that price to be an overcharge in violation of federal law. The text of the federal court opinion unequivocally directed the district court to grant orders to secure recovery for overcharges against “ap-pellees”, which included all of the plaintiffs in the declaratory judgment action. The DOE, represented by the U.S. Attorney’s office, proceeded against only Seneca.

The statutory privilege of section 1443.1 extends further than “fair and true reports of judicial proceedings.” It applies to “any and all expressions of opinion in regard thereto, and criticisms thereon,” as well as to “criticisms upon the official acts” of public officers. Read in context, the components of the press release are inferences from the court records together with expressions of candidate Walters’ opinions. They are largely his comment, criticism and personal judgment on his political opponent’s role in federal court litigation, which occurred when that opponent held public office.

Price’s principal complaint regards the use of words such as “defendant” which give the impression that he was a criminal defendant, found guilty, and fined. However, although Price and others were plaintiffs, they were seeking to defend or answer assertions by the government that they had violated federal pricing laws. The statement that “Price Broke Law” and was “Fined” is slanted, but the federal court order did direct recovery of “overcharges in violation of Ruling 1980-3,” and, under federal law, those moneys recovered would “compensate overcharged purchasers” and be distributed to the state as “indirect restitution.” The statement that Price “gouged consumers” is clearly a nonac-tionable “judgmental statement” which is “opinionative and not factual in nature.” Miskovsky v. Oklahoma Publishing Co., 654 P.2d 587, 593 (Okla.1982), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982).

The concluding quotes from Walters and references to “skeletons” in Price’s closet are more of the same — personal opinion and hyperbole. These kinds of rhetorical expression of opinion are protected, and rightly so, because of the “realization that there exists a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that the discussion may well include vehement, caustic and sometimes unpleasantly sharp attack on public officials.” Jurkowski v. Crawley, 637 P.2d 56, 58 (Okla.1981). Where the tone of a piece is “pointed, exaggerated and heavily laden with emotional rhetoric and moral outrage,” readers are notified “to expect speculation and personal judgment.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 32, 110 S.Ct. 2695, 2712, 111 L.Ed.2d 1 (1990) (Brennan, J., dissenting).

The subject press release does use words that might be considered by some to be inappropriate. However, in Jurkowski this Court recognized some constitutional protection for clearly erroneous statement, which we do not find the press release to be, when it recognized:

“Aside from the inevitable chance of frank abuse there is the fact that erroneous statement is inevitable in free debate, and that those erroneous statements must additionally be protected if the freedoms of expression are to have the breathing space they need to survive, therefore the constitutional privilege does not turn upon the truth, popularity or social utility of the ideas and beliefs considered.” 637 P.2d at 58.

Importantly, the Restatement (Second) of Torts, § 581A, comment (f), provides: “It is not necessary to establish the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.”

While our decision rests on § 1443.1 privilege, it is nonetheless important to consider plaintiff’s claims in light of extant first amendment “fact vs. opinion” analysis. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court declared constitutional protection for the expressions of opinion, immunizing them from defamation consequences, stating:

“We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.¹ But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270, 84 S.Ct., at 721- Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate.” 418 U.S. at 341-42, 94 S.Ct. at 3007 (Footnote omitted).

Since Gertz, this distinction between fact and opinion has been seen as an adjudication of constitutional dimension, necessary to provide requisite First Amendment protection to opinions. Speaking to this point in Oilman v. Evans, 750 F.2d 970, 978 (D.C.Cir.1984), the court agreed with the “overwhelming weight of post-Geriz authority” that this determination is a decision which courts must make as a matter of law. That court also observed that even though the judicial methods used to distinguish between fact and opinion vary, the determination of the issue as one of law serves important First Amendment values since the predictability of decisions is enhanced when they are made according to announced legal standards from published case law.

Judge Robert Bork, in his concurring opinion in Oilman v. Evans, supra, spoke of statements which the reader should perceive as functionally more “opinion” than “fact” because they appear in the context of swirling political controversy. Like the statements at issue in Oilman, the statements here are not actionable; they fall into the category the U.S. Supreme Court calls “rhetorical hyperbole.” 750 F.2d at 994; Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1974); National Ass’n. of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). Of special relevance to us are Judge Bork’s analyses of the impact of libel actions on the political arena and his observations regarding individuals who have become the subject of spirited public debate by voluntarily placing themselves in that arena.

In part he stated:

“It arouses concern that a freshening stream of libel actions, which often seem as much designed to punish writers and publications as to recover damages for real injuries, may threaten the public and constitutional interest in free, and frequently rough, discussion. Those who step into areas of public dispute, who choose the pleasures and distractions of controversy, must be willing to bear criticism, disparagement, and even wounding assessments. Perhaps it would be better if disputation were conducted in measured phrases and calibrated assessments, and with strict avoidance of the ad hominem; better, that is, if the opinion and editorial pages of the public press were modeled on The Federalist Papers. But that is not the world in which we live, ever have lived, or are ever likely to know, and the law of the first amendment must not try to make public dispute safe and comfortable for all the participants. That would only stifle the debate.”

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“There are several factors that convince me Oilman cannot maintain this action. These considerations are of the type that the Supreme Court and other courts have deemed important: the danger to first amendment freedoms and the functional meaning of the challenged statement as shown by its context and its qualities as recognizable rhetorical hyperbole. The factors here are: Oilman, by his own actions, entered a political arena in which heated discourse was to be expected and must be protected; the ‘fact’ proposed to be tried is in truth wholly unsuitable for trial, which further imperils free discussion; the statement is not of the kind that would usually be accepted as one of hard fact and appeared in a context that further indicated it was rhetorical hyperbole.”

* * ⅛» * * *

“In deciding a case like this, therefore, one of the most important considerations is whether the person alleging defamation has in some real sense placed himself in an arena where he should expect to be jostled and bumped in a way that a private person need not expect. Where polities and ideas about politics contend, there is a first amendment arena. The individual who deliberately enters that arena must expect that the debate will sometimes be rough and personal.” 750 F.2d at 993,1002.

We conclude the lower court properly engaged in a Crittendon analysis and correctly found the subject press release privileged under the statute. The press release is substantially accurate and is a fair and true report of the basic facts. The expressions of opinion in regard to those facts are not actionable. Those statements fall exclusively within the category of “rhetorical hyperbole”; they are privileged under 12 O.S.1991, § 1443.1, and protected under the constitution. Therefore, it is unnecessary to address the issue of malice.

For the above and foregoing reasons, the judgment of the district court is AFFIRMED.

KAUGER, V.C.J., SIMMS, J., JOHNSON, REIF, and STUBBLEFIELD, Special Judges, in lieu of HODGES, SUMMERS, and WATT, JJ. who certified their disqualifications, concur. ALMA WILSON, C.J., and LAVENDER, HARGRAVE and OPALA, JJ., dissent.

1 . This statement from Gertz was recently quoted with approval by the U.S. Supreme Court in Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 503-04, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502 (1984).