McCusker v. Valley News

• Decision Date: 03 April 1981
• Docket Number: No. 80-197,80-197
• Parties: , 7 Media L. Rep. 1343 James F. McCUSKER v. VALLEY NEWS.
• Court: New Hampshire Supreme Court

Page 493

428 A.2d 493

121 N.H. 258, 7 Media L. Rep. 1343

James F. McCUSKER v. VALLEY NEWS.

No. 80-197.

Supreme Court of New Hampshire.

April 3, 1981.

Brown & Nixon P.A., Manchester (Stanley M. Brown, Manchester, on brief and orally), for plaintiff.

Bell, Falk & Norton, Keene (Ernest L. Bell, III, Keene, on brief and orally), for defendant.

PER CURIAM.

The issue in this libel case is whether the trial court erred in denying the defendant's motion for summary judgment. We uphold the trial court.

On October 8, 1976, the defendant published an article written by one of its staff writers, Jan Slusmon, who reported that certain unnamed legislators had alleged that the plaintiff, who at that time was 78 and the brother of the then sheriff of Sullivan County, was "being paid $9,000 a year as a part-time deputy sheriff, plus an undetermined amount of money in per diem fees, despite the fact that he is barely ambulatory."

The plaintiff brought suit alleging that the statements were untrue and libelous. The defendant moved for summary judgment, on the grounds that the plaintiff is, and has been since 1944, a public official, that the article related to his official conduct, that the publication is actionable only on a showing of "actual malice," and that there are no facts that would establish such malice. Jan Slusmon also filed a supporting affidavit claiming that he had accurately reported the legislators' statements and that he had no reason to doubt that the statements were substantially true. The Trial Court (Temple, J.) found that there were genuine issues of fact as to whether the plaintiff was a public official and as to whether proof of "actual malice" was required in order for the plaintiff to recover, and therefore denied summary judgment. The defendant appealed.

If the plaintiff was a public official or a public figure, then, in order to recover for injury to reputation, he would have to prove not only that the defamatory statement was false but also that the defendant published it with knowledge that it was false or with reckless disregard for the truth. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130, 162-65, 87 S.Ct. 1975, 1995-96, 18 L.Ed.2d 1094 (1967) (Warren, C. J., concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964). If the plaintiff was neither a public official nor a public figure, then he need not prove knowing falsehood or recklessness. Gertz v. Robert Welch, Inc., 418 U.S. at 343-48, 94 S.Ct. at 3008-11. Instead, he may recover compensatory damages upon a showing that the defendant was negligent in publishing a defamatory falsehood. See id. at 349-50, 94 S.Ct. at 3011-12.

Not all government employees are public officials within the meaning of New York Times Co. v. Sullivan. In order to show that the plaintiff is a public official under New York Times, the defendant must prove that the plaintiff's "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 government employees...." Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966). In the Rosenblatt case, the United States Supreme Court "remarked" that the decision as to whether the plaintiff in a defamation action is a public official is "for the trial judge in the first instance." Id. at 88, 86 S.Ct. at 677. However, in Baer v. Rosenblatt, 108 N.H. 368, 370-71, 237 A.2d 130, 132-33 (1967), decided after remand from the Supreme Court, we held that the Constitution of this State, N.H.Const. pt. I, arts. 14 and 20, entitled the plaintiff to a jury trial on this issue with proper instructions from the court. We reinforced this position in Thomson v. Cash, 119 N.H. 371, 378, 402 A.2d 651, 656 (1979).

In remarking that the issue of whether an individual is a public official was in the first instance for the trial judge, the United States Supreme Court was concerned with the possibility that a jury, in making the determination, would be influenced by its view of the defendant and his publication. See Rosenblatt v. Baer, 383 U.S. at 88 n.15, 86 S.Ct. at 677 n.15. This concern is not unlike that expressed in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), with respect to the determination of the voluntariness of confessions. We are of the opinion, however, that this concern can be dispelled by careful instructions to the jury and by the use of a special verdict on the public official issue. See Baer v. Rosenblatt, 108 N.H. at 371...