Beamer v. Nishiki

• Decision Date: 04 October 1983
• Docket Number: No. 9054,9054
• Citation: 670 P.2d 1264,66 Haw. 572
• Parties: , 10 Media L. Rep. 1171 Martha L. "Billie" BEAMER, Plaintiff-Appellee, v. Wayne NISHIKI, Wayne Nishiki dba Committee to Elect Wayne Nishiki Lt. Governor; Valley Isle Publishers, a Partnership, and Rick Reed, Defendants-Appellants, and James Leslie Moore, Geoffrey Silva, Partners therein; Valley Isle Publisher, Inc., a purported Hawaii corporation; John Does 1-10; and John Doe Corporations, 1-10, Defendants.
• Court: Hawaii Supreme Court

Page 1264

670 P.2d 1264

66 Haw. 572, 10 Media L. Rep. 1171

Martha L. "Billie" BEAMER, Plaintiff-Appellee, v. Wayne NISHIKI, Wayne Nishiki dba Committee to Elect Wayne Nishiki Lt. Governor; Valley Isle Publishers, a Partnership, and Rick Reed, Defendants-Appellants and James Leslie Moore, Geoffrey Silva, Partners therein Valley Isle Publisher, Inc., a purported Hawaii corporation; John Does 1-10; and John Doe Corporations, 1-10, Defendants.

No. 9054.

Supreme Court of Hawai'i.

Oct. 4, 1983.

Syllabus by the Court

1. Unlike other appellate matters, in reviewing summary judgment decisions an appellate court steps into the shoes of the trial court and applies the same legal standard as the trial court applied.

2. Normal summary judgment procedure should be followed in actual malice defamation actions.

In reviewing a defamation plaintiff's motion for summary judgment, the presence of an issue of fact from which a reasonable trier of fact could find plaintiff had not met her burden of proof on even one element of her defamation claim would be sufficient to defeat her motion for summary judgment.

To prevail on summary judgment, a public figure defamation plaintiff must establish as a matter of law each element of defamation by a preponderance of the evidence except the element of actual malice, which must be proven with a higher standard of clear and convincing proof.

A statement's defamatory character, the defendant's failure to investigate, and the incredibility of evidence concerning defendants' state of mind together do not constitute actual malice as a matter of law.

3. Summary judgment for the plaintiff is proper only where the record reveals that there is no genuine issue as to any material fact, viewing the record in the light most favorable to the defendants.

Summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.

4. To prove defamation, the plaintiff must establish four elements: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher (actual malice where the plaintiff is a public figure); and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

5. Actual malice is the deliberate falsification of facts or reckless disregard of the truth, i.e., reckless publication despite a high degree of awareness, harbored by the publisher, of the probable falsity of the published statements.

Reckless disregard is a subjective question of the defendant's state of mind.

The existence or absence of malice is generally a question for the jury.

6. Whether a communication is defamatory depends among other factors, upon the temper of the times, the current of contemporary public opinions, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.

It is for the jury to consider the context of a possibly defamatory statement and determine whether it lowered the plaintiff's reputation in the estimation of the community.

An allegedly defamatory statement is to be read as a whole to determine its defamatory impact.

7. To prevail on summary judgment, a public figure defamation plaintiff must establish as a matter of law each element of defamation by a preponderance of the evidence except the element of actual malice, which must be proven with a higher standard of clear and convincing proof.

Plaintiff must prove each defendant acted with actual malice.

8. It is for the jury to consider the context of a possibly defamatory statement and determine whether it lowered the plaintiff's reputation in the estimation of the community.

9. The existence or absence of malice is generally a question for the jury.

10. A non-attorney dissolution trustee attempting to represent a dissolved corporation in legal proceedings appears in the interests of the dissolved corporation's shareholders and consequently engages in the unauthorized practice of law.

Randolph R. Slaton, Honolulu (Chee, Lee, Oshiro & Williams, Honolulu, of counsel), for defendant-appellant Wayne Nishiki.

Rick Reed, pro se, individually and as trustee in dissolution for Valley Isle Publishers, Inc., defendants-appellants.

David C. Schutter, Robert K. Merce, Honolulu (Schutter, Pavey & Cayetano, Honolulu, of counsel), for plaintiff-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

HAYASHI, Justice.

Once again we must decide the propriety of summary judgment in a public figure defamation action. The present case has its roots in the allegations of underworld involvement which were the subject of this court's opinion in Mehau v. Gannett Pacific Corp., 66 Haw. 134, 658 P.2d 312 (1983), and, in addition, involves basically the same defendants and election campaign presented in Rodriguez v. Nishiki, 65 Haw. 430, 653 P.2d 1145 (1982). Again we reach the same conclusion: this case presents genuine issues of material fact which require consideration by a jury. We therefore reverse the trial court's order of summary judgment in plaintiff's favor, affirm the denial of defendants' motion for summary judgment, vacate the jury's damage award, and order a complete new trial on all issues of the case.

FACTS

For background (as outlined in Mehau, 66 Haw. at 138-42, 658 P.2d 312), in 1977 Larry E. Mehau was the subject of controversy over alleged ties to the underworld. One source of the charges was an article in The Valley Isle, a biweekly tabloid published on Maui with a normal press run of twelve thousand copies. ¹ Id. at 139 n. 4, 658 P.2d 312. The publisher and editor of The Valley Isle was Rick Reed, a defendant here.

The following year, Martha L. "Billie" Beamer and Wayne Nishiki were opposing candidates in the 1978 Democratic primary for the Lieutenant Governor's office. ² Rick Reed was Nishiki's campaign manager and public relations man.

During the campaign, Beamer was publicly endorsed by David Trask, head of the Hawaii Government Employees' Association. Reed interviewed Beamer about additional possible support by Larry Mehau and published the interview in The Valley Isle on September 1, 1978. Beamer did acknowledge unsolicited help from Mehau though disclaimed any knowledge of Mehau as an underworld figure or any substantial involvement by Mehau in her campaign. ³

On September 19, 1978, The Valley Isle published the campaign advertisement which prompted this suit:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Although claiming that Beamer was "controlled" by Trask and Mehau, the ad contained no express references to the underworld. Rick Reed wrote the ad and Nishiki approved it. Reed and Nishiki republished the ad many times and made it into Nishiki TV commercials which repeated the charge that Beamer was controlled by Mehau and Trask. ⁴

On October 12, 1978, Beamer filed suit for defamation against defendants Nishiki, "Valley Isle Publishers, Inc., a purported corporation," and defendants Moore, Reed, and Silva as partners in the Valley Isle Publishing partnership. Both sides moved for summary judgment. The trial court granted plaintiff's motion for summary judgment and denied defendant's motion on February 1, 1980, prior to this court's opinions in Rodriguez v. Nishiki and Mehau v. Gannett. The trial court ruled (1) the statements were libelous per se; (2) Nishiki had no basis for his "control" statement; (3) Nishiki made the statement with no knowledge of its truth or falsity and therefore acted with "utter disregard for whether the statement was false or not"; and (4) the facts were undisputed as a matter of law.

Following summary judgment the parties went to trial on the issue of damages. The first jury hung; the second awarded plaintiff $35,000 in damages. Defendants now appeal the trial court's summary judgment ruling but does not appeal the jury's determination of damages.

DISCUSSION

Unlike other appellate matters, in reviewing summary judgment decisions an appellate court steps into the shoes of the trial court and applies the same legal standard as the trial court applied. Fernandes v. Tenbruggencate, 65 Haw. 226, 228, 649 P.2d 1144, 1147 (1982). The trial court ruled on both plaintiff's and defendants' motions for summary judgment; we therefore consider each in turn.

I. PLAINTIFF'S SUMMARY JUDGMENT

The present case parallels Rodriguez closely so we look there for guidance. The paramount lesson of Rodriguez is "the normal summary judgment procedure should be followed in 'actual malice' defamation actions." 65 Haw. at 439, 653 P.2d at 1151. Summary judgment for the plaintiff is proper only "where the record reveals that there is no genuine issue as to any material fact," viewing the record in the light most favorable to the defendants. Id. at 438, 653 P.2d at 1150.

Moreover, the trial court must find the plaintiff is entitled to judgment as a matter of law. Hawaii Rules of Civil Procedure (HRCP) 56(c). This is indeed a difficult hurdle to clear. As we stated in State v. Zimring, 52 Haw. 472, 475, 479 P.2d 202, 204 (1970) (quoting Phoenix Savings and Loan, Inc. v. Aetna Casualty and Surety Co., 381 F.2d 245 (4th Cir.1967)), " 'It is well settled that summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.' " To prevail here on summary judgment, plaintiff must establish as a matter of law each element of defamation by a preponderance of the evidence except the element of actual malice, which must be proven with a higher standard of "clear and...