Williams v. Pasma

• Decision Date: 29 December 1982
• Docket Number: No. 82-50,82-50
• Citation: 656 P.2d 212,202 Mont. 66
• Parties: , 9 Media L. Rep. 1004 Larry WILLIAMS, Plaintiff and Appellant, v. James PASMA, Defendant and Respondent.
• Court: Montana Supreme Court

Page 212

656 P.2d 212

202 Mont. 66, 9 Media L. Rep. 1004

Larry WILLIAMS, Plaintiff and Appellant, v. James PASMA, Defendant and Respondent.

No. 82-50.

Supreme Court of Montana.

Submitted Nov. 15, 1982.

Decided Dec. 29, 1982.

Gerald J. Neely argued, Billings, for plaintiff and appellant.

Herron, Meloy & Llewellyn, Helena, Peter M. Meloy argued, Helena, for defendant and respondent.

HARRISON, Justice.

Plaintiff/appellant, Larry Williams, filed a complaint in the Thirteenth Judicial District, Yellowstone County, against defendant/respondent, James Pasma, claiming libel and asking for damages. On January 8, 1982, the District Court granted summary judgment to Pasma. Williams appeals.

The alleged libel was prompted by an occurrence of events which began in October 1979. At that time there was "talk" that Superintendent of Public Instruction, Georgia Ruth Rice, would be opposed by a former employee, Judi Fenton. On October 24, 1979, Kenneth Dunham, Secretary to the State Republican Committee, made a critical comment about both Rice and Fenton which was carried by the Great Falls Tribune. In the same edition of the Tribune there was another story announcing that unsuccessful U.S. Senate candidate Williams and former Governor Tim Babcock had been selected and agreed to head a John Connally for President committee.

When Pasma, a member of the State Democratic Committee, read the two news reports, he found it ironic the republicans were criticizing the two potential democratic candidates while at the same time they announced the appointment of two individuals (Williams and Babcock) who had had "trouble with the law" to run Connally's campaign committee. Pasma then composed a press release which was printed in the Great Falls Tribune on October 27, 1979. Pasma stated, "The entire thrust of my article was for Mr. Dunham to busy himself cleaning up his own house rather than attacking unannounced democratic candidates and delving or messing around in any way in the democratic primary." The press release stated:

"A Democratic Party official Friday accused state Republican spokesman Ken Dunham of making statements about Democrats that were 'short on content and long on poor taste and bad manners.'

"Democratic national committeeman Jim Pasma, Havre, took issue with comments Dunham made this week about Public Instruction Supt. Georgia Ruth Rice and her possible Democratic opponent, Judi Fenton. Rice also is a Democrat.

"Dunham had questioned Rice's competency and said he was disturbed that Democrats would consider nominating 'another bureaucrat' like Fenton for the job.

"Pasma called Dunham's comments 'typical of the traditional negative chatter that comes from the Republican state office.' He said Dunham's press releases, which included a 'vicious personal attack' on Rice and 'an equally unbecoming media salvo' against Fenton 'may very well set the tone for the type of campaign rhetoric we can expect from the GOP in 1980.'

"Pasma said it was ironic that on the same day that Dunham attacked the Democrats, a story ran indicating that former Republican Gov. Tim Babcock and Larry Williams, unsuccessful 1978 GOP Senate candidate, were among the leaders of a state committee promoting the presidential candidate John Connally.

" 'When we consider that all three have at one time or another been under federal indictment for political and financial shenanigans, it is small wonder to me at least that Ken Dunham busies himself calling attention to what he considers the shortcomings of possible Democratic opponents, Pasma said.'

"Connally, a former Democratic governor of Texas, was acquitted of charges that he was bribed by milk producers when he was secretary of the treasury. Babcock pleaded guilty and was fined for making an illegal campaign contribution to former President Richard Nixon. Williams was stripped of his licenses as an investor and commodity adviser, but a court ruled in his favor and his licenses have been returned.

"Pasma urged Dunham to spend his time making sure the Republicans come up with their best qualified candidate for superintendent to insure a healthy debate of the issues in the general election."

Pasma's misconception about Williams evolved from an article which appeared in Forbes Magazine and was reprinted in the Billings Gazette. The article contained the following statement:

"Court records show that Williams was three times charged with violations of federal regulations covering commodities and security investment counselors."

Pasma claims he did not know the difference between "charged with a federal offense" and "being under federal indictment."

In a story which appeared in the Great Falls Tribune on October 30, 1979, Williams demanded a retraction from Pasma. Williams stated Pasma's charges that Williams had been under federal indictment were false and constituted "dirty politics" and he would file a libel suit if a formal retraction was not made. Williams said, "Somebody has to teach political people in Montana to play the game by the facts and by the truth, and if that happens to be me, so be it."

In a telephone interview after Williams demanded a retraction, Pasma stated: "If Mr. Williams says he wasn't indicted, then I have no choice but to believe him unless someone informed me otherwise." This statement was published in the Great Falls Tribune on October 30, 1979. Pasma further admitted that "his use of the words 'federal indictment' in a press release 'apparently was a poor one.' " In an interview published in the Great Falls Tribune on December 11, 1979, Pasma stated, "At the time I made the statement that Mr. Williams had been federally indicted, as had former Governor Babcock and former Governor Connally, I sincerely believed it, ... talking to Mr. Williams by phone he assured me that this was incorrect and as I said in a previous news release, I believe him."

After Pasma refused to make a formal retraction, Williams filed a complaint in Yellowstone County against Pasma alleging that he had been libeled and suffered damages by virtue of the article published in the Great Falls Tribune. Pasma moved to dismiss the action claiming Williams was a "public figure" and therefore in order for Williams to recover he must allege and prove actual malice. Before the District Court acted on the motion to dismiss, Williams amended his complaint charging Pasma with actual malice. On January 8, 1982, following cross-motions for summary judgment, the District Court granted Pasma's motion and ordered judgment be entered in favor of Pasma. Williams appeals.

The substance of the issues raised on appeal is as follows:

1. Whether the District Court erred by granting summary judgment which held Williams is a public figure as a matter of law.

2. Whether there is any genuine issue as to any material fact affecting Williams' allegations that Pasma acted with malice, and if not, is there any factual basis upon which a jury could conclude that the statements were made with malice.

3. Whether the state and federal rules protecting freedom of speech and press in libel actions apply to a nonmedia defendant.

4. Whether the defenses of "belief in the truth" and "fair comment" were properly pleaded and if so, whether these defenses and the privileges contained in section 27-1-804, MCA, apply in this action.

Williams contends summary judgment was inappropriate claiming the issue of whether or not he was a public figure is for the jury to determine. Williams cites Article II, Section 7, 1972 Montana Constitution:

"In all suits and prosecutions for libel or slander the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the facts."

In support of his position, Williams relies upon the following language from Madison v. Yunker (1978), 180 Mont. 54, 589 P.2d 126:

"Likewise it may be contended in the retrial that Madison is a 'public figure.'

Whatever his status, it is a question for the jury to determine, because of the constitutional provision that the jury under the instructions of the court is the judge of both law and fact. Article II, Section 7, 1972 Montana Constitution. With appropriate instructions, the jury can determine these matters and their status in any trial, unless otherwise stipulated." 589 P.2d at 133.

However, this language is not controlling and must be qualified. In Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580, this Court correctly stated:

"While our Constitution like that of Missouri, Colorado, South Dakota and Wyoming provides that in libel suits 'the jury, under the direction of the court, shall determine the law and the facts,' yet the decisions clearly show that the function of the court and jury is not greatly different in the trial of libel from what it is in other cases.

"In other words, it is for the court and not the jury to pass upon demurrers to the complaint; upon the admissibility of the evidence; upon motions for nonsuit; upon motions for a directed verdict; upon motions for a new trial and upon motions to set aside verdicts or vacate judgments." 114 Mont. at 512, 138 P.2d 580.

Thus, there is no absolute prohibition against granting summary judgment in libel cases. As the United States Supreme Court commented in Roseblatt v. Baer (1966), 383 U.S. 75, 88, 86 S.Ct. 669, 15 L.Ed.2d 597: "we remark only that, as in the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official.' "

Next, we must decide whether the District Court was correct in finding Williams was a public figure as a matter of law. If Williams was a public figure at the time of the alleged libel, then he cannot recover damages unless he can show the statement was made with actual malice. This rule was stated by the United States Supreme Court in New York Times v. Sullivan (1964), 376 U.S. 254, 279-280, 84 ...