Sellars v. Stauffer Communications, Inc.

695 P.2d 1279, 684 P.2d 450, 9 Kan. App. 2d 573, 236 Kan. 697, 10 Media L. Rep. (BNA) 2081, 1984 Kan. App. LEXIS 335

• Court: Court of Appeals of Kansas
• Decided: June 28, 1984
• Docket: 55,387
• Status: Published

Opinions

Parks, J.:

This is an appeal by Kelly Sellars from an order granting summary judgment in favor of the defendant, Stauffer Communications, Inc., in a defamation suit.

This action was originally filed by plaintiff Kelly Sellars and her husband, James Sellars, as a result of two articles which appeared in The Morning Sun, a daily newspaper published by defendant in Pittsburg, Kansas. The articles were published October 25 and October 26, 1980, but concerned events which occurred much earlier in January and February of the same year. At that time James Sellars was the Crawford County Sheriff and Kelly Heistand, who married Sellars in February, worked in the sheriff s office as a file clerk. Kelly was employed by the Comprehensive Employment and Training Administration (CETA) and the sheriff had no control over the employment or payment of CETA workers.

The CETA records indicate that Kelly’s employment was terminated as of January 18, but because of the scheduling of CETA pay periods and accrual of paid benefit time, she continued to receive county paychecks in February and March. Max McCoy, a reporter for The Morning Sun, was perusing “county legáis” eight months later when he noticed the disbursal of county funds to Kelly Sellars in February and March. He checked the county records, which incorrectly indicated that Kelly’s last day of employment was January 31, 1980, rather than January 18. Since Kelly had been confined in a Missouri jail for two weeks of shock probation beginning January 20, the reporter believed that she had been paid for a period of time when she could not possibly have been working.

McCoy contacted the Topeka CETA office to obtain information concerning the operation of the CETA program and was told to direct specific questions concerning Kelly’s status to the local administrator, Linda Smith. McCoy was unable to reach Smith and did not check the official employment records kept at the local CETA office before running the story. The reporter did speak with James Sellars the evening before the first article was published and asked why county records showed Kelly was paid while in jail. Sellars replied that Kelly had been taken off the payroll four days before entering jail and that she may have received payment for vacation or other benefits on her final paycheck.

Shortly before James Sellars lost his bid for reelection as sheriff, The Morning Sun ran two articles which included the following statements found by the court to include false information:

1. “Kansas CETA officials are checking payroll records to determine if Sheriff Jim Sellars misused sheriff s department CETA funds when his wife-to-be was apparently paid for a full month of work last January — although she spent nearly two weeks of that pay period in a Missouri jail.” (Article dated October 25, 1980.)

2. “But county records indicate she was paid a full month’s wages in January and $298.88 during February.” (Article dated October 25, 1980.)

3. “Although Sellars said his wife-to-be was dropped from the sheriffs department CETA payroll in mid-January, county fiscal records show her employment was not terminated until Jan. 31, 11 days after she entered a Missouri jail.” (Article dated October 26, 1980.)

The Sellars filed this action for defamation and defendant moved for summary judgment. The district court held that plaintiff James Sellars was a “public official” by virtue of his position as sheriff, and that he would have to prove malice on the part of defendant in order to prevail. The court further held that Kelly Sellars was neither a “public official” nor a “public figure” but, nevertheless, concluded that she also bore the burden of proving malice by defendant. Because the court found no evidence of malice suggested by the record, it granted summary judgment in favor of defendant. Both plaintiffs appealed this decision, but James Sellars died while the case was pending. Since an action for defamation does not survive death (K.S.A. 60-1802), the decedent’s name was dismissed from the appeal. Therefore, we are concerned with the propriety of the court’s order only as it regards Kelly Sellars (K.S.A. 60-225) and shall consider all of the district court’s holdings concerning James’ status, insofar as they affect the issues on appeal, as the law of the case.

The district court correctly recognized that publications concerning a public official or public figure are qualifiedly privileged and are actionable only if malice can be shown. New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964); Steere v. Cupp, 226 Kan. 566, 571, 602 P.2d 1267 (1979). If the plaintiff is neither a public official nor a public figure, he need only prove that the defamation was negligently published. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974); Gobin v. Globe Publishing Co., 216 Kan. 223, 231-32, 531 P.2d 76 (1975). The district court held that Kelly Sellars was not a public figure or a public official on her own, but that because of her relationship to a public official and relying on Brewer v. Memphis Pub. Co., Inc., 626 F.2d 1238 (5th Cir. 1980), the statements published by defendant concerning Kelly were, nonetheless, qualifiedly privileged.

Since the court’s decision that both plaintiffs would have to prove malice must be upheld if it is for any reason correct (Smith v. Stewart, 233 Kan. 904, 907, 667 P.2d 358 [1983]), we shall first consider whether Kelly, regardless of her relationship to James Sellars, was a public official or public figure. If she does not fall into either of these categories, then we must consider the impact of her status as the spouse of a public official and the holding of the Brewer case on the standard of proof she must bear.

A public official is one whose 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 governmental employees. Rosenblatt v. Baer, 383 U.S. 75, 86, 15 L.Ed.2d 597, 86 S.Ct. 669 (1966). Kelly Sellars was a CETA employee working in a county office during the events described in the news article. As a file clerk, she exercised no sovereign power or control over the exercise of governmental affairs. See Steere, 226 Kan. at 572. Outside of the controversy stirred up by the article, the public would ordinarily have no more interest in her qualifications or activities on the job than it would in any other governmental employee. Therefore, we agree with the district court that plaintiff Kelly Sellars was not a public official.

There are two types of public figures. First, there are those who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes (Gertz, 418 U.S. at 345), and secondly, there are persons who are public figures for limited purposes only (Steere, 226 Kan. at 572). The all purpose public figure includes those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 164, 18 L.Ed.2d 1094, 87 S.Ct. 1975, reh. denied 389 U.S. 889 (1967) (Warren, C.J., concurring). The limited public figure is one who thrusts himself to the forefront of particular public controversies in order to influence the resolution of the issues involved. Gertz, 418 U.S. at 345. The rationale for extending a qualified privilege for publications involving public figures is twofold. First, it is believed that such individuals are less vulnerable to injury through defamation because their fame provides them with greater access to channels of communication capable of exposing and revealing the falsity of defamatory statements. Second, the court has held that the more important consideration is that public figures are less deserving of protection from defamation because they have voluntarily exposed themselves to the risk of false reporting, in effect, assuming the risk of defamation. Wolston v. Reader s Digest Assn., Inc., 443 U.S. 157, 164, 61 L.Ed.2d 450, 99 S.Ct. 2701 (1979).

Kelly Sellars, as either the wife of the county sheriff or as a file clerk employed by CETA, had no extraordinary fame or power which would have enabled her to shape events of concern to citizens of Crawford County or society at large. She was not a public figure for all purposes. In addition, plaintiff did not thrust herself voluntarily into the vortex of a public controversy to become a limited public figure. Hanrahan v. Horn, 232 Kan. 531, 534, 657 P.2d 561 (1983). There was no evidence indicating that plaintiff took part in the campaign “controversy” which may have arisen as a result of the election contest entered by her husband. Additionally, although the newspaper may have created a public furor with its false implication that plaintiff received unearned wages, this is not a “controversy” in the sense intended by Gertz and Hanrahan because “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” Hutchinson v. Proxmire, 443 U.S. 111, 135, 61 L.Ed.2d 411, 99 S.Ct. 2675 (1979).

In Gleichenhaus v. Carlyle, 226 Kan. 167, 168, 597 P.2d 611 (1979), our Supreme Court agreed with the conclusion of the Court of Appeals concerning the status of the plaintiff as a limited purpose public figure. Gleichenhaus v. Carlyle, 3 Kan. App. 2d 146, 152-53, 591 P.2d 635 (1979). The Court stated that a person does not become a public figure solely by making a contribution to a political party or candidate. However, when the contributor subsequently receives a contract, other than on a competitive bid basis, through either the office of the recipient or some governmental agency over which the recipient exerts considerable influence, the Court agreed that the contributor was a public figure for the limited purpose of the issue of political payoffs. Gleichenhaus, 226 Kan. at 168. In sum, the Court took a closer look at the actual power wielded by the plaintiff because of the strong public interest in preventing and exposing political corruption. Since, in fact, the plaintiff occupied a dual status as a political contributor and beneficiary of politically determined contract advantages, the Court extended the protection afforded by the public figure qualified privilege.

The publications in this case also involve a subject of public interest - the use of public funds. However, in Hutchinson v. Proxmire, 443 U.S. at 135, the Supreme Court held that a research scientist who received funds from federal agencies was not a public figure simply because his work depended on public funding. Thus, public concern over expenditures and waste in government was not sufficient to make a private plaintiff a public figure.

This case is additionally distinguishable from Gleichenhaus because the facts found to be undisputed by the court reveal no possession of hidden power on plaintiff s part which would elevate her to the status of a public figure. The CETA records indicated that plaintiff s employment was terminated on January 18, several days prior to her Missouri incarceration. In addition, even if we assume that plaintiff had influence over her husband-to-be, the undisputed testimony indicates that the sheriff had no control over the disbursal of funds used to pay plaintiff s wages. Therefore, this case lacks the element of power through influence which was determinative in Gleichenhaus.

Finally, it should be noted that neither of the reasons underlying the public figure privilege apply to the plaintiff in this case. Kelly Sellars has no greater access to the media or other means of communication than any other private person. Moreover, she took no voluntary steps to place herself in the public limelight. We conclude the plaintiff, Kelly Sellars, was not a public figure.

Having decided that the district court correctly held plaintiff to be neither a public figure nor a public official, we turn now to decide whether the additional factor of her relationship to a public official should alter the burden of proof.

In Brewer, 626 F.2d 1238, the case relied on by the district court, the defendant newspaper published an item stating that plaintiff Anita Wood, an entertainer and former girlfriend of Elvis Presley, had met Presley in a Las Vegas hotel for a “reunion.” The article also stated that Wood was divorced from former Ole Miss football star John Brewer. Since, in fact, the Brewers were not divorced and Anita had not visited Presley, both John and Anita Brewer sued for defamation. The Fifth Circuit held that both John and Anita were public figures, at least in certain instances, because of John’s career as a professional athlete, and Anita’s media exposure as an entertainer and romantic foil for Elvis Presley. Since the article in question concerned an aspect of Anita’s life which made her a public figure, i.e., her relationship with Presley, the court concluded that she was a public figure for the purposes of this case and would have to overcome the actual malice burden of proof. The court then concluded that although the news item did not involve the reason for John’s fame, he too would have to prove malice to prevail, stating as follows:

“The article does not relate to John’s fame as a football player. To hold that he might therefore recover on a showing of negligence would, however, strip the required protection from the press to write such a story about Anita. To summarize, we find that Anita Wood Brewer who had gained media exposure and fame through her career and her romantic relationship with Presley, an extremely well-known entertainer, and whose name continued to appear in stories about Presley after her retirement, was required to prove malice in this suit based on an article that dealt primarily with that romantic relationship and incidentally with her marital status. Since, in our view, the first amendment requires ‘malice’ protection for the press, which has repeatedly covered both these aspects of her life thereby advancing her career, in publishing this story, the same standard must be applied to John Brewer’s suit. Even where the defamatory portions of an article do not relate to the basis for one public figure’s fame, he may not, by marrying another public figure, reduce the constitutional protection afforded the press to publish stories about his spouse.” Brewer, 626 F.2d at 1257-58.

We believe that Brewer should not control the outcome of this case. The proper focus of an inquiry into the extent of the constitutional protection for free speech and press in a defamation action should be on the right of the defamed person to be free from published falsehoods. Wolston, 443 U.S. at 167; Hutchinson, 443 U.S. at 135; Gertz, 418 U.S. at 345; Hanrahan, 232 Kan. at 534. John Brewer, unlike Kelly Sellars, is a public figure for some purposes. Thus, in certain instances a publication concerning Brewer would be privileged. An article about Kelly Sellars, on the other hand, would never be privileged because on her own she is not famous. Therefore, while Brewer sought to prevent John from escaping a stricter burden of proof because of his marriage, the application of Brewer to this case would be to use plaintiff s marriage to escalate her burden of proof.

The Fifth Circuit was concerned that the press protection afforded by the qualified privilege to report on Anita’s activities would be negated if the privilege did not also apply to the mention of John, himself a sometime public figure. However, the article in question in Brewer implies no actual wrongdoing by John but simply errs in identifying his marital status. By contrast, the article published by defendant accused Kelly Sellars of illegal conduct in taking unearned wages just as strongly as it charged her husband, Sheriff Sellars, of participating in that wrongdoing. A defendant should not be able to negligently defame a private person simply by implying that a related public official also participated in the defamatory acts. We believe that to require defendant to act without negligence in publishing statements about Kelly would not lessen the effectiveness of the privilege for reports on James’ work as a public official.

We conclude that the district court erred in requiring plaintiff to bear the burden of proving malice on the part of the defendant. Since the district court found that evidence of negligence was shown by the record and defendant did not cross-appeal on this point, the summary judgment is reversed and the case is remanded for trial.