Barber v. Perdue, A89A1420

CourtUnited States Court of Appeals (Georgia)
Citation194 Ga.App. 287,390 S.E.2d 234
Docket NumberNo. A89A1420,A89A1420
Decision Date20 December 1989

James A. Mackay, Decatur, Cook & Palmour, Bobby Lee Cook, Summerville, for appellant.

Chilivis & Grindler, Nickolas P. Chilivis, Gary G. Grindler, Glass, McCullough, Sherrill & Harrold, Robert S. Jones, L. James Weil, Jr., Atlanta, Hull, Towill, Norman & Barrett, David E. Hudson, Augusta, for appellee.


Appellant Jack McWhorter "Mac" Barber filed a lawsuit against appellee Tom Perdue, a former administrative aide to the governor, alleging that Perdue had libeled and slandered Barber. This appeal follows the grant of summary judgment to Perdue.

The alleged libel was contained in a letter sent out by Perdue at the beginning of August 1986 to approximately 350 various city and county officials throughout Georgia during the 1986 political campaign for a seat on the Public Service Commission. Appellant had resigned from the PSC seat in February 1985 and then qualified to run in the 1986 election against Gary Andrews, a recent appointee to the position from which Barber had resigned. In July 1986, an Andrews press conference was held at which certain public documents from an investigative file on Mac Barber were released. Shortly thereafter Perdue sent the letter, as follows, on plain stationery with his home address:

Lately, I have called on you often to ask for your assistance, and there is no way to really express in a letter my appreciation for the consideration and response you have provided. Now, once again, I must ask for your help.

A year and a half ago, a Public Service Commissioner betrayed the public trust and tarnished his own reputation and, indirectly, that of all public officials by accepting what amounted to a bribe. When confronted with the fact that the Attorney General and the Georgia Bureau of Investigation had this information and were about to seek a felony indictment, Mac Barber chose to resign his office rather than face the prospect of indictment and conviction. The trucking company official who gave Mac Barber the money was convicted and fined a total of $12,000.00!

This situation has occurred twice since Governor Harris has been in office. The first official was, as you remember, Sam Caldwell, who also betrayed the public trust and later was convicted of defrauding the state. Under pressure, he resigned as Labor Commissioner. To my way of thinking, Mac Barber and Sam Caldwell are two of the biggest embarrassments that state government has ever suffered.

As specified by the State Constitution, when these vacancies occurred, Governor Harris was required to make appointments to fill them. In the case of the Labor Commissioner, the Governor appointed Joe Tanner, and in the case of the Public Service Commissioner, he appointed Gary Andrews. In contrast to their predecessors, these two men epitomize what a public servant should be. They have integrity and character and stand for what is right, good, and fair. While managing the responsibilities of their jobs, they also have had to rebuild the public trust and confidence Mac Barber and Sam Caldwell destroyed in those positions and in state government.

My request of you at this time is that you please do everything you possibly can during the last week of the campaign to make sure that Gary Andrews and Joe Tanner are elected. The people of Georgia deserve officials they can trust and honesty in state government.

The alleged slander consisted of Perdue's comments to an Albany newspaper reporter along the same lines as the letter.

"A libel is a false and malicious defamation of another, expressed in print ..., tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." OCGA § 51-5-1(a). "Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. [Cit.]" Grayson v. Savannah News-Press, 110 Ga.App. 561, 566, 139 S.E.2d 347 (1964). "Slander or oral defamation consists in: (1) Imputing to another a crime punishable by law...." OCGA § 51-5-4(a). Bribery is such a crime. OCGA § 16-10-2.

Appellant concedes, for purposes of this action, that he is a "public figure" who is prohibited "from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686 (1964). Inasmuch as the First Amendment mandates that a public figure plaintiff prove actual malice by clear and convincing evidence (Id. at 285-286, 84 S.Ct. at 728-729; Harte-Hanks Communications v. Connaughton, --- U.S. ----, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Williams v. Trust Co. of Ga., 140 Ga.App. 49, 52, 230 S.E.2d 45 (1976)), "a court ruling on a motion for summary judgment [in such a case] must be guided by the New York Times 'clear and convincing' evidentiary standard in determining whether a genuine issue of actual malice exists--that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

The case is not ripe for summary judgment in favor of defendant as the moving party. The four-volume record shows that there are material factual disputes which are relevant to the issue of knowledge or at least reckless disregard, which themselves are material to the pivotal issue of actual malice in the promulgator's issuance of the statements.

In deciding motions for summary judgment, our rule is the same under OCGA § 9-11-56 as is the rule under FRCP 56. The Supreme Court framed it: "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes [v. S.H. Kress & Co.], 398 US , at 158-159 [90 S.Ct. 1598, 1609, 26 L.Ed.2d 142]...." Anderson, supra 477 U.S. at 255, 106 S.Ct. at 2513; Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981); Burnette Ford v. Hayes, 227 Ga. 551, 181 S.E.2d 866 (1971). The question of law before us is whether, in this posture, viewing all the direct and circumstantial evidence and reasonable inferences in plaintiff's favor, a jury could find by clear and convincing evidence that defendant sent the letter or made any of the untrue statements " 'with knowledge that it was false or with reckless disregard of whether it was false or not.' " Anderson, supra 477 U.S. at 244, 106 S.Ct. at 2508, quoting New York Times Co. v. Sullivan, supra, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686. Such would constitute the element of actual malice which is an ingredient of a defamation case of this type.

Although "clear and convincing" is a more stringent standard than "preponderating" and requires a greater quantum and a high quality of proof in plaintiff's favor, Anderson, supra at 254, 106 S.Ct. at 2513, it has been recognized that proof of actual malice "does not readily lend itself to summary disposition," Hutchinson v. Proxmire, 443 U.S. 111, 120, n. 9, 99 S.Ct. 2675, 2680, 61 L.Ed.2d 411 (1979). See Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d, § 2730, pages 240-245. This is because, as said in Hutchinson, proof of actual malice "calls a defendant's mind into question." Proof of state of mind "could be in the form of objective circumstances from which the ultimate fact could be inferred" as well as direct evidence from defendant. Herbert v. Lando, 441 U.S. 153, 160, 99 S.Ct. 1635, 2703, 60 L.Ed.2d 115 (1979). Because of the very nature of this element of the tort, Herbert pointed out that "[c]ourts have traditionally admitted any direct or indirect evidence relevant to the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages." Id. at 165, 99 S.Ct. at 2706. Evidence of motive may bear a relation to the actual malice inquiry. Harte-Hanks Communications, supra, --- U.S. ----, 109 S.Ct. at 2684.

Because of the opportunities for having or obtaining, from objective sources, a knowledge of the true facts prior to publication of the statements, which on their face were libelous if not true, OCGA § 51-5-4(a), defendant has not conclusively eliminated a finding of actual malice which finding is based on clear and convincing evidence. Much of what is in dispute depends, for its resolution, on the credibility of witnesses. Defendant's own denial of actual malice is not conclusive in the presence of evidence to the contrary. St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262, 268 (1968). Not only direct evidence, but circumstantial evidence and reasonable inferences, are for a factfinder's sifting. Harte-Hanks Communications, supra, as illustrative.

That is outside of our circumscribed function as an appellate court, Guye v. Home Indem. Co., 241 Ga. 213, 244 S.E.2d 864 (1978), and was so for the trial court. OCGA §§ 24-9-80, 9-11-56. As the Supreme Court reiterated in the Anderson summary judgment case, supra 477 U.S. at 255, 106 S.Ct. at 2513: "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment...."

There is evidence that defendant did not personally check the facts in the letter before sending them out from his home under the weight of his signature, knowing that he was identified as the governor's administrative aide. He deposed that he reviewed the GBI file, which contained contrary information which at the least could be inferred that defendant "entertained serious doubts as to the truth of his publication." St. Amant, supra 390 U.S. at 731, 88...

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