Mark v. King Broadcasting Co.

• Decision Date: 29 September 1980
• Docket Number: No. 7564-1-I,7564-1-I
• Citation: 618 P.2d 512,27 Wn.App. 344
• Parties: , 6 Media L. Rep. 2224 Albert M. MARK, Appellant, v. KING BROADCASTING COMPANY, a corporation, Respondent.
• Court: Washington Court of Appeals

Page 344

27 Wn.App. 344

618 P.2d 512, 6 Media L. Rep. 2224

Albert M. MARK, Appellant, v. KING BROADCASTING COMPANY, a corporation, Respondent.

No. 7564-1-I.

Court of Appeals of Washington, Division 1.

Sept. 29, 1980.

[618 P.2d 514] Albert M. Mark, pro se.

Riddell, Williams, Ivie, Bullitt & Walkinshaw, Steven E. DeForest, Seattle, for respondent.

CALLOW, Chief Judge.

Albert M. Mark, a licensed pharmacist, brought an action for defamation and invasion of privacy against the defendant, KING Broadcasting Company, arising out of news stories broadcast on the defendant's television station on three occasions. Mark appeals from the trial court's entry of summary judgment in favor of KING Broadcasting.

On December 30, 1976, KING's regular evening news program reported that:

A pharmacist in West Seattle has been charged with cheating the State out of $200,000 in Medicaid funds. The King County Prosecutor's office says it is the largest Medicaid fraud case ever filed in this state. Albert Mark On the following day, December 31, 1976, a KING news program reported that:

who owns two drug stores in West Seattle, is charged with filing a claim that used doctors' names who never ordered the drugs and patients' names who never received the drugs. Albert Mark will be arraigned next week.

A West Seattle pharmacist has been charged with defrauding the State of $200,000 for false drug prescriptions. Albert Mark, who owns this pharmacy at 5435 California Avenue, S.W., is charged with grand larceny, tampering with evidence and with ten counts of forgery. Gene Anderson, head of the Fraud Division of the King County Prosecutor's office, says Mark filed claims using names of doctors and patients eligible for Medicaid, but those doctors and patients never wrote or received prescriptions. Mark will be arraigned on January 5th.

Finally, on January 7, 1977, a KING news program again reported that:

A West Seattle pharmacist has pleaded not guilty to a charge he cheated the State out of $200,000 in Medicaid payments....

Albert M. Mark is the owner of two drugstores in West Seattle. The County Prosecutor's office says over the past two years Mark has made out over $200,000 worth of false prescriptions for Medicaid patients. The bills for those prescriptions were submitted to the State's Medicaid office. State auditors found out doctors never ordered the prescriptions and their patients never got them. Mark appeared in court today. He pled not guilty to grand larceny, tampering with physical evidence and ten counts of forgery.

In conjunction with the January 7, 1977, report, KING aired a film clip taken by its cameraman from the exterior of Mark's pharmacy. The footage included shots of the exterior of the pharmacy and of the interior as seen through the front window. The view of the interior included a view of an individual with a wall-mounted telephone to an ear.

On the morning of December 30, 1976, an information was filed by the King County Prosecutor's office in King An affidavit of probable cause, which was a matter of public record and signed by the chief deputy prosecuting attorney, provided in relevant part as follows:

County Superior Court charging Mark with grand larceny, 10 counts of forgery, and tampering with physical evidence. Regarding the grand larceny charge, the information alleged that Mark defrauded the State of "checks and money of a value in excess of $75," and that Mark "submitt(ed) voluminous amounts, the exact number unknown, of forged and false prescription forms" and had "collected substantial sums of money from the Department, the total amount unknown, in the form of payment on the aforesaid false and fraudulent prescriptions."

The instances collected by the Department of Social and Health Services investigators pursuant to the search warrant and through subsequent inspection of records maintained on Mark's premises coupled with follow-up interviews of doctors and recipients reflects false claims and payments substantially in excess of $75.

Further, in that regard an audit was begun on or about October 12, 1976. At that time, a sampling of medicaid prescriptions billed by Mark to the department were taken from records subpoenaed for inspection but kept at the premises. The sample period was from January 1, 1974 to August 31, 1976. The total number of prescriptions including both medicaid and private patient for this period numbered about 135,760. Only medicaid prescriptions were picked and the sample taken after being verified resulted in a 63% invalid figure or over $200,000 in fraud billing for the 22/3 years. This first audit was completed by about the end of November, 1976. A second audit to verify the first with a larger sample (300) was planned to begin December 6, 1976. The results of the first audit were communicated to Mark through his attorney and the need for verification using a larger sample was stressed.

It is undisputed that the information and affidavit of probable cause provided the factual basis for KING's news reports.

In June 1977, Mark was found guilty in King County Superior Court of grand larceny and five counts of forgery.

The State's evidence established invalid medicaid claims totaling approximately $2,500. Mark received a 5-year deferred sentence and a 1-year county jail term with work release. Mark was also ordered to pay full restitution in an amount to be determined at a later date. Mark's conviction was affirmed in an unpublished opinion. State v. Mark, 23 Wash.App. 1050, 597 P.2d 408 (1979). Petition for review was granted on January 11, 1980. State v. Mark, 93 Wash.2d 1004 (1980). The exact amount of medicaid funds involved remains unresolved as restitution proceedings are still pending.

Based on the December 30 and 31 news reports and the January 7 news report and film clip, Mark brought an action for defamation and invasion of privacy against KING in November 1978. His complaint alleged as a first cause of action that "the defendant knew, or in the exercise of reasonable care, should have known, that plaintiff was not charged with $200,000 in Medicaid fraud but only with an amount in excess of $75 and as such ... this was not the largest Medicaid fraud case ever filed in the state." The complaint alleged that the "defendant knew, or in the exercise of reasonable care, should have known, that its statements would create a false impression in the minds of viewers that plaintiff was guilty of a $200,000 Medicaid fraud." Mark alleged as a second cause of action that the film clip aired by KING on January 7, 1977, in conjunction with the news report, was "an invasion of plaintiff's right of privacy and constituted a trespass or intrusion into plaintiff's solitude (and which) placed plaintiff in a false light in the public eye."

The trial court granted defendant KING's motion for summary judgment. The plaintiff appeals, asserting that summary judgment was inappropriate upon the evidence before the trial court.

THE DEFAMATION ACTION

A qualified or conditional privilege exists permitting newspapers to publish, and television and radio to report, legal proceedings provided the publication is a fair and accurate statement of the contents and is made without malice. O'Brien v. Tribune Publ. Co., 7 Wash.App. 107, 499 P.2d 24 (1972), cert. denied, 411 U.S. 906, 93 S.Ct. 1531, 36 L.Ed.2d 196 (1973); O'Brien v. Franich, 19 Wash.App. 189, 575 P.2d 258 (1978). The privilege attaches to pleadings which have been filed in court and is not contingent on judicial action being taken. O'Brien v. Tribune Publ. Co., supra. ¹

An information is a pleading, but an affidavit is not. State v. Cronin, 20 Wash. 512, 56 P. 26 (1899); Brady v. Yount, 42 Wash.2d 697, 258 P.2d 458 (1953). The distinction is not relevant to the issue here. An information is the initial pleading by the prosecutor commencing a criminal proceeding. See RCW ch. 10.37; CrR 2.1. A prosecutor signing an information certifies that "he has read the pleading; (and) that to the best of his knowledge, information, and belief there is good ground to support it; ..." CR 11, CrR 2.1. Where in a procedural area a civil rule speaks and a criminal rule is silent, the civil rule applies. See State v. Scott, 92 Wash.2d 209, 595 P.2d 549 (1979); State v. Scott, 20 Wash.App. 382, 580 P.2d 1099 (1978); and State v. Johnson, 21 Wash.App. 919, 587 P.2d 189 (1978). The civil rule that governs the signing of pleadings and requires the attorney of record to vouch for the veracity of the pleading, insofar as he can, pertains also to the signing of criminal informations. The same aura of responsibility covers the execution of affidavits of probable cause when signed by prosecutors.

The news media and the public have a strong interest in the reporting of information in official court documents which form part of legal proceedings and which are filed as matters of public record. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), it was stated:

(I)n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. ...

... The commission of crime, prosecutions resulting from it,...