Bandelin v. Pietsch

• Decision Date: 14 March 1977
• Docket Number: No. 11953,11953
• Parties: , 2 Media L. Rep. 1600 Glenn E. BANDELIN, Plaintiff-Appellant, v. L. E. PIETSCH et al., Defendants-Respondents.
• Court: Idaho Supreme Court

Page 395

563 P.2d 395

98 Idaho 337, 2 Media L. Rep. 1600

Glenn E. BANDELIN, Plaintiff-Appellant, v. L. E. PIETSCH et al., Defendants-Respondents.

No. 11953.

Supreme Court of Idaho.

March 14, 1977.

Rehearing Denied May 13, 1977.

Peter B. Wilson, of Wilson & Walter, Bonners, Ferry, for plaintiff-appellant.

Piatt Hull, of Hull, Hull & Wheeler, Wallace, Fred W. Gilbert, of Hamblen, Gilbert & Brooke, Spokane, Wash., for defendants-respondents.

DONALDSON, Justice.

This case is an action for libel and invasion of privacy. Plaintiff-appellant Glenn Bandelin appeals from a grant of summary judgment. Glenn E. Bandelin is a North Idaho attorney and is also a former office holder in the state legislature. On December 19, 1968, the probate court of Bonner County appointed him guardian of the person and estate of one Muriel I. Talbot who had been found incompetent on the same date. She died on January 2, 1970. Bandelin did not initiate proceedings for a final accounting until March 25, 1971. At that time, the district court concluded that Bandelin's management of the estate had been negligent in the extreme and ordered the prosecuting attorney of Bonner County to initiate contempt proceedings against him.

Over a period of several months, the Sandpoint News-Bulletin reported the ensuing legal proceedings. Accounts of the proceedings occurred in eleven consecutive editions of the Sandpoint News-Bulletin. There were seventeen publications in toto. These accounts gave rise to Bandelin's allegations of libel and invasion of privacy. He claims that the accounts contained misstatements of fact and that they were deliberately repetitious.

From the record it appears that misstatements appeared in the August 19 and August 26 editions of the Sandpoint News-Bulletin. The August 19 edition referred to two Sandpoint attorneys 'judged in contempt of a district court decision and order concerning their handling of the guardianship and estate of the late Mrs. Muriel Talbot.' At a later point in the article they were cited by name. In the August 26 edition the same misstatement is made twice. Although plaintiff was later judged in contempt by the district court (a conviction that was overturned by the Idaho Supreme Court on procedural grounds), at the time the above accounts were written his case had not come to trial and hence he had not as yet been adjudged in contempt. The Sandpoint News-Bulletin did accurately report future developments in the case-Bandelin's conviction, the appeal that followed and the Supreme Court's reversal of the lower court's decision, but it never made a retraction of the earlier misstatements.

Bandelin brought a libel action along with an invasion of privacy action against the Sandpoint News-Bulletin, as well as its editor, L. E. Pietsch, and the reporter responsible for the allegedly defamatory publications Morgan Monroe. After extensive discovery, the Sandpoint News-Bulletin moved for summary judgment. The district court, after examining the record as well as supplementary briefs and affidavits, granted the Sandpoint News-Bulletin's motion. This appeal followed.

Two issues are raised on appeal. First, were the allegedly defamatory newspaper publications privileged under the first amendment. Second, assuming that the publications were privileged, were there disputed issues of material fact as to the existence of malice that should have been submitted to a jury. In short, was Sandpoint News-Bulletin's motion for summary judgment providently granted.

We will address the issue of privilege first, but before doing so, we will briefly delineate the relevant legal principles on which this case must be resolved.

Ever since New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) was decided, the Supreme Court has been grappling with the problem of reconciling the demands of the first amendment freedom of the press with the law of libel and invasion of privacy. New York Times and its progeny place a heavy burden on a libel plaintiff. If a communication is constitutionally privileged under New York Times, a plaintiff can recover only if he can prove malice on the part of the publisher, with malice being defined as knowledge of falsity or reckless disregard of truth. New York Times Co. v. Sullivan, supra. Although reckless disregard bears a superficial resemblance to gross negligence, the Supreme Court has interpreted it to mean much more. In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), with only Justice Fortas dissenting, the Court reversed a judgment for the plaintiff because nothing in the record established that the defendant had a conscious awareness of probable falsity. In addition, the Court has replaced the 'preponderance of evidence' standard of proof, generally applicable in civil cases, with the more demanding standard of 'clear and convincing' evidence. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). These same principles have also been applied to actions for invasion of privacy. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).

The protection accorded the first amendment reached a high water mark in Rosenbloom. Not only did that decision give constitutionally privileged communications the benefit of a more demanding standard of proof, a plurality applied the Times privilege to a provate individual's involvement in a matter of public or general concern. Prior to Rosenbloom, the privilege had been confined to publications concerning public officials or public figures. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the tension that necessarily exists between the need for a robust press and the competing societal interest in preserving the integrity of an individual's reputation resulted in a retrenchment of the Court's interpretation of first amendment rights. The battleground was the threshold issue of privilege. The majority in Gertz rejected the contention of the plurality in Rosenbloom that publications involving matters of public and general concern enjoyed a constitutional privilege even when they involved private individuals. The issue was raised again in Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) at which time the Court affirmed its holding in Gertz, stating explicitly that reports of judicial proceedings were not privileged in priori.

Appellant Bandelin cites Gertz and Firestone and argues on this basis that respondents' communications were not constitutionally privileged. We cannot agree. Although Gertz and Firestone narrowed the area of first amendment protection in libel and presumably in invasion of privacy actions, nothing in either case affected prior court decisions regarding privileged communications that involved public officials or public figures. The district court found that the reports of the Sandpoint News-Bulletin were privileged in that they were reports about a public figure. We agree. The United States Supreme Court in Gertz said that the designation of a public figure may rest on two alternative bases:

'In some instances an individual may achieve such persuasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.' 418 U.S. at 351, 94 S.Ct. at 3013.

A review of the record reveals that Bandelin was prominent in the local politics of Bonner County, had been a representative in the state legislature, was a leading attorney, and was well-known throughout the county. Counsel for Bandelin argues, however, that in recent years Bandelin's public role has subsided-that he has reverted to the 'simple small-town lawyer he was before he gained notoriety.' We concede that a public figure can revert back to the 'lawful and unexciting life lead by the great bulk of the community.' Prosser, Law of Torts, § 107 (1st ed. 1941). But it is far more common that a public figure will retain residual elements of his former status even when he returns to private life.

However, we do not affirm the district court's decision exclusively on the prominence that Bandelin enjoyed in the local community. We are sensitive to the consequences of being a public figure and we do not assume that a citizen's participation in community and professional affairs automatically renders him a public figure. We follow the approach of the Supreme Court in Gertz:

'It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation (or invasion of privacy).' 418 U.S. at 352, 94 S.Ct. at 3013.

In the present case, Bandelin as the guardian of the estate of Muriel I. Talbot was the center of the controversy that gave rise to the Sandpoint News-Bulletin's publications. The Sandpoint News-Bulletin initiated its coverage of the Talbot case when it became aware of the trial judge's criticism of Bandelin's handling of the Talbot guardianship. Under such circumstances, Bandelin cannot maintain that he is not a public figure and was just an attorney handling the probate affairs of a client. He was rather that court...