Hackworth v. Larson

• Decision Date: 05 March 1969
• Docket Number: No. 10498,10498
• Citation: 165 N.W.2d 705,83 S.D. 674
• Parties: Ann HACKWORTH and Beverly Burton, Plaintiffs and Appellants, v. Alma H. LARSON, the Associated Press, and the Rapid City Journal Company, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 705

165 N.W.2d 705

83 S.D. 674

Ann HACKWORTH and Beverly Burton, Plaintiffs and Appellants, v. Alma H. LARSON, the Associated Press, and the Rapid City Journal Company, Defendants and Respondents.

No. 10498.

Supreme Court of South Dakota.

March 5, 1969.

Gunderson, Farrar, Aldrich & Warder, Rapid City, for plaintiffs and appellants.

Whiting, Lynn, Jackson, Freiberg & Shultz, Rapid City, for defendant and respondent, Alma H. Larson.

Bangs, McCullen, Butler & Foye, Rapid City, for defendants and respondents, The Associated Press and the Rapid City Journal Co.

RENTTO, Judge.

This is a libel action predicated on a news release issued by the defendant, Alma H. Larson, Secretary of State of South Dakota, and a news dispatch concerning it prepared and disseminated by the Associated Press and published by the Rapid City Journal Company. The defendants moved for summary judgment on the pleadings. When the motions were heard these were supplemented by affidavits filed on behalf of all parties. The motions were granted. From the judgment entered plaintiffs appeal. As to defendant Larson, the question presented is whether the occasion is absolutely privileged and as to the other defendants whether the First Amendment to the U.S. Constitution, as made applicable to the states by the Fourteenth, precludes recovery against them.

For some time prior to the issuance of the news release plaintiffs were employed in defendant Larson's office, Ann Hackworth as Assistant Secretary of State and Beverly Burton as Corporation Secretary. They questioned the manner in which defendant Larson conducted the office and were critical of the official conduct of an employee therein. These matters they discussed with her and when she didn't accept their suggestions with the Governor, and at his request with the Attorney General. Plaintiff Hackworth seemed to be the leader in these activities, but plaintiff Burton participated in some of them. By letters dated December 30, 1966, they notified defendant Larson that they would take their annual leaves commencing January 3, 1967 and that their resignations would become effective upon expiration of such periods.

The Attorney General on orders from the Governor began an investigation of the situation. This resulted in the following dispatch from the AP published in the Journal on January 5, 1967:

'PIERRE RESIGNATIONS TOUCH OFF PROBE PIERRE (AP)--An inquiry by the Attorney General's office is reportedly being made after two persons employed in the Secretary of State's office submitted resignations.

There were no indications of why the investigation was being made.

Ann Hackworth, Assistant Secretary of State, and Mrs. Beverly Burton, Corporation Secretary, resigned.

Secretary of State, Alma Larson, said she had no comment.

Miss Hackworth also said she could not 'make a statement at this time.'

There was a report that a third resignation had been made in the Secretary of State office.

At Sioux Falls, Attorney General Frank Farrar said the investigation was ordered by Governor Nils Boe but did not elaborate.'

The claims of the plaintiffs do not involve this dispatch, but it is proper background for what follows:

On January 6, defendant Larson issued the following press release:

'January 6, 1967 at 11:00 A.M.

Secretary of State Alma Larson today accepted the resignation of Miss Donna Hagemann, a secretary in her office. Miss Larson says she 'regrets very much' this resignation, but understands Miss Hagemann's desire to change employment. The Secretary of State said Miss Hagemann has been 'a very good secretary and a hard worker in the office for the past five years. Her work has always been outstanding.'

In her letter of resignation, Miss Hagemann wrote, 'I have enjoyed my employment in this office and feel that the experience will be of great benefit in ny future work.'

At the same time, Miss Larson announced two terminations in her office and two new appointments. She said her assistant, Ann Hackworth, and another secretary, Mrs. Beverly Burton, had tendered resignations but that she rejected them. According to Miss Larson, the two women employees were 'fired for several reasons.' She listed 'insubordination and failure to work' as the primary causes for the firing.

Miss Larson said the two discharged women 'have not worked since December 30, but they except to get paid anyway. I know that the people of South Dakota would not permit such laxity. As a consequence, I had no recourse but to remove their names from the payroll.'

The two new employees in the office of the Secretary of State are Mrs. Kay Enright from Presho and Mrs. Caroline Tschetter of Bridgewater. No announcement had been made regarding who will be named Assistant Secretary to replace Miss Hackworth.

In her statement to the Press, Miss Larson said the office shakeup was necessary to provide efficient and businesslike service from her department.'

It is upon this item that the plaintiffs base their claims of libel against defendant Larson.

On the same day the Attorney General held a press conference at which he disclosed that an investigation of the Secretary of State's office was underway, ordered by the Governor, and that it was a routine investigation. He disclosed no specific reason for it. Later that day the AP prepared the following news dispatch concerning defendant Larson's press release and the Attorney General's conference:

'Pierre (AP)--Secretary of State Alma Larson said today she has received the resignation of a third staff member.

However, Miss Larson said she rejected the two earlier resignations and fired the pair. Fired were Ann Hackworth, Assistant Secretary of State, and Mrs. Beverly Burton, a Corporation Department Secretary. The third resignation, effective today, came from Donna Hagemann, a Secretary. At the same time, an investigation by the Attorney General's office was continuing but there was no specific reason for the probe reported. Atty. Gen. Frank Farrar called the matter 'routine'.

The investigation was ordered by Gov. Nils Boe, Farrar said.

Miss Hackworth and Mrs. Burton said Thursday they had turned in their resignations. However, Miss Larson said she had rejected their resignations 'for several reasons,' listing 'insubordination and failure to work.'

Miss Larson said the two 'have not worked since Dec. 30, but they expect to get paid anyway. I know that the people of South Dakota would not permit such laxity. As a consequence, I have no recourse but to remove their names from the payroll.'

Miss Larson said two replacements have been employed. They are Mrs. Kay Enright, Presho, and Caroline, Tschetter, Bridgewater.

No announcement has been made regarding who will be named assistant secretary to succeed Miss Hackworth.

The fuss in the Secretary of State's Office is the third hassle involving state government department heads within the last six months. Three unit heads in the Department of Public Welfare resigned and criticized Matthew Furze, Department Director.

The other controversy centered around State Auditor Lloyd Jorgenson, who was State Treasurer at the time. Democrats questioned him during the election campaign about his bank deposit practices.'

The Journal published this item as it appeared adding thereto only the headline 'Alma Fires Two Who Quit'. On this dispatch and the article published by the Journal plaintiffs base their claims against the AP and the Journal.

About five months later this action was commenced. When defendants served their respective answers they also moved for summary judgment. These motions were heard at a time and place agreed upon by counsel. While they had not initiated any prior efforts to take depositions or hold discovery proceedings, at the hearing on the motions plaintiffs urged that they should be denied or continued, to permit them to engage in discovery. The court having determined that no genuine issue of fact existed and that no proper purpose would be served by permitting plaintiffs to engage in discovery, directed the entry of judgment in favor of the defendants.

As to defendant Larson the plaintiffs take the position that she does not enjoy an absolute privilege because she was not required by law or otherwise to issue statements to the press.

This claim is without validity. It is now well established that the issuance of press releases is an essential activity of public officials if 'within the outer perimeter' of their line of duty. Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, and Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, seem to be leading cases in this field. See also Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359; Lombardo v. Stoke, 18 N.Y.2d 394, 276 N.Y.S.2d 97, 222 N.E.2d 721; Gold Seal Chinchillas, Inc. v. State of Washington, 69 Wash.2d 828, 420 P.2d 698; Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586. The theory behind this view is that it is in the public interest that information be made available as to what takes place in public affairs. The public is entitled to more than rumors. It is thought desirable to encourage free and uninhibited dissemination of information about governmental activities even if on occasions an individual suffers harm thereby.

Defendant Larson was a constitutional officer and the incident in question involved her duty of hiring and discharging the personnel of her office. Clearly, the release which she issued had a real relation to the general matters committed by law to her control and supervision. It has long been recognized that a defamatory statement issued by a public official in the proper discharge of his official duties is absolutely privileged. This is the purport of SDC 47.0503 which provides:

'A privileged communication is one made:

(1) In the proper discharge of an official duty;

(2) In any legislative or judicial proceeding, or in any other official proceeding authorized by law.'

See also Restatement of the Law,...