Boswell v. Phoenix Newspapers, Inc.

Decision Date04 December 1986
Docket NumberNo. 18159-PR,18159-PR
Citation730 P.2d 186,152 Ariz. 9
Parties, 55 USLW 2399, 13 Media L. Rep. 1785 Steve W. BOSWELL and Jim Mofford, Plaintiffs-Appellants, v. PHOENIX NEWSPAPERS, INC., an Arizona corporation; and Edythe Jensen, Defendants-Appellees.
CourtArizona Supreme Court

Marton & Hall by Kraig J. Marton, Phoenix, for plaintiffs-appellants.

Gust, Rosenfeld, Divelbess & Henderson by James F. Henderson, Glen Hallman, Phoenix, for defendants-appellees.

Brown & Bain, P.A. by Paul F. Eckstein, Alan H. Blankenheimer, Phoenix, for amici curiae, Arizona Broadcasters Ass'n, Arizona Newspapers Ass'n, Arizona Press Ass'n, Cox Arizona Publications, New Times and Scottsdale Pub.

Molloy, Jones, Donahue, Trachta, Childers & Mallamo, P.C. by Michael J. Meehan, Tucson, for amicus curiae Citizen Pub. Co.

Haralson, Kinerk & Morey, P.C. by D. Dale Haralson, Tucson, and Langerman, Begam, Lewis and Marks by Amy G. Langerman, Phoenix, for amicus curiae Arizona Trial Lawyers Assn.

FELDMAN, Justice.

Steve W. Boswell and Jim Mofford (plaintiffs) brought a defamation action against defendants Phoenix Newspapers, Inc. and Edythe Jensen, its reporter, alleging that defendants had published a story falsely charging plaintiffs with criminal activity. Over objection, the trial judge instructed the jury that if the newspaper had adequately retracted the false statement, plaintiffs could not recover general damages. The jury returned a verdict for defendants. The court of appeals held the statute requiring the retraction instruction unconstitutional under article 18, section 6 of the Arizona Constitution (art. 18, § 6). Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 1, 730 P.2d 178 (Ariz.Ct.App.1985). The court concluded, therefore, that the trial court had erred in giving the instruction, and remanded the case for a new trial.

We accepted review to determine the scope of the protection extended by art. 18, § 6. We have jurisdiction under Ariz. Const. art. 6, § 5(3), A.R.S. §§ 12-2101(B), (F)(1) (Supp.1986), and Rule 23(c)(4), Ariz.R.Civ.App.P., 17A A.R.S. (Supp.1986).

FACTS

In a story written by Jensen, The Phoenix Gazette incorrectly reported that plaintiffs had entered guilty pleas to second-degree burglary in connection with a theft from a grocery store. In truth, plaintiffs were security guards employed at the store and had helped apprehend the thieves. Upon learning of its error, The Gazette voluntarily published a correction in its next edition.

Their feelings unassuaged by this act of contrition, plaintiffs responded by filing this defamation action. They introduced evidence at trial to show that the defamatory publication had damaged their reputations, affected their job performances, and inflicted severe emotional distress. Relying on A.R.S. §§ 12-653.02 and 12-653.03, the trial judge instructed the jury that if it found that the newspaper had published the retraction in substantially as conspicuous a manner as the defamatory article, it could award plaintiffs only those damages "suffered in respect to their property, business, trade, profession or occupation." This instruction, of course, would preclude the jury from awarding general damages for loss of reputation and emotional distress. From the evidence introduced at trial, the jury could have found that the retraction was adequate and that there were no special damages. Thus, the instructions embodying the cited statutes The court of appeals held that the trial court should have directed a verdict on the liability issue because defendants had been negligent as a matter of law. 152 Ariz. at 5, 730 P.2d at 182. It further held that A.R.S. §§ 12-653.02 and 12-653.03 are capable of only one construction: where a media defendant has published an adequate retraction, plaintiffs are limited to recovery of "special damages"--those "suffered in respect to ... property, business, trade, profession or occupation."

[152 Ariz. 11] would have required a finding for defendants, even if the jury found that plaintiffs had sustained general damages. The verdict was for the defendants. After judgment was entered, plaintiffs appealed.

The court of appeals then considered the validity of the statutes under art. 18, § 6 of the Arizona Constitution, which provides:

The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.

The court found that the retraction statutes "so severely limit recovery that they effectively abrogate the right to recover damages." 152 Ariz. at 8, 730 P.2d at 185. The court based this conclusion partially on the ground that the statutory scheme completely deprived large classes of defamation victims of a cause of action. Id. Approving the court's resolution of the other questions, we granted review solely on the abrogation holding.

COMMON LAW DEFAMATION

The constitutional protections available to these defendants are limited because plaintiffs are neither public officials nor public figures. Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 480-81, 724 P.2d 562, 566-67 (1986); Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 312-15, 560 P.2d 1216, 1219-22 (1977); see infra 152 Ariz. at 19, 730 P.2d at 196. The common law imposed strict liability on the publisher of defamatory statements. Dombey, 150 Ariz. at 480, 724 P.2d at 566. Under the common law, a publication that brought a person into disrepute or impeached honesty, integrity, virtue, or reputation was libelous per se, and presumed false, entitling plaintiff to recover damages without proving actual loss. Id.; Broking v. Phoenix Newspapers, Inc., 76 Ariz. 334, 337, 264 P.2d 413, 415 (1953); Central Arizona Light & Power Co. v. Akers, 45 Ariz. 526, 536, 46 P.2d 126, 131 (1935). Thus, under common law, if a publication was libelous per se, plaintiff did not have to allege or prove either actual or special damages, Akers, 45 Ariz. at 541, 46 P.2d at 133; general damage was presumed and could be awarded absent proof of any specific injury. 1 Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3011-12, 41 L.Ed.2d 789 (1974); Conard v. Dillingham, 23 Ariz. 596, 601-06, 206 P. 166, 168-70 (1922); 50 Am.Jur.2d Libel and Slander § 356, at 878-80 (1970).

THE STATUTORY SCHEME

The common law was substantially changed by the challenged statutes, effective June 12, 1967. In effect, the statutes provide that a media defendant that retracts in accordance with the statutory scheme is potentially liable only for "special damages," unless a plaintiff can prove that the publication was made "with actual malice." A.R.S. § 12-653.02. 2 "Special damages" are damages that the plaintiff "proves he has suffered in respect only to his property, business, trade, profession or occupation." A.R.S. § 12-653.01(5). "General damages" are "damages for loss of The trial court instructed the jury in accordance with these statutes. Thus, by peremptory instruction, plaintiffs were prohibited from recovering damages for emotional distress and, assuming the jury found the retraction adequate, were prohibited from recovering for loss of reputation. Because plaintiffs' proof might not have sustained recovery of "special damages," they argue that the statutes deprived them of all recovery in violation of art. 18, § 6.

                [152 Ariz. 12] reputation."  A.R.S. § 12-653.01(3).  A plaintiff can recover general and special damages from a media defendant only if the defendant failed to publish an adequate retraction after a demand.  A.R.S. § 12-653.03. 3  As the court of appeals noted, the statutes apparently do not allow recovery for emotional distress under any circumstances.  152 Ariz. at 7, 730 P.2d at 184
                

Defendants contend that the constitutional provision does not apply. They claim that art. 18, § 6 protects only causes of action that were recognized by the common law when the constitution was adopted and that enabled plaintiffs to recover damages for negligent infliction of bodily injury. If defendants are correct, art. 18, § 6 would not apply in this case for either of two reasons. First, at the time of the Arizona Constitutional Convention of 1910, defamation was a strict liability action; negligence was not an issue. Ante 152 Ariz. at 11, 730 P.2d at 188. Second, defamation injures reputation but does not inflict bodily injury. Defendants also contend that art. 18, § 6 does not apply because until 1922 no Arizona case had referred to emotional distress as an element of damage in a defamation action, and the constitution could not protect an element of damage not recognized when it was adopted. Moreover, even if art. 18, § 6 applies to defamation actions, defendants contend that the retraction statutes regulate rather than abrogate the action.

We turn to these issues.

DISCUSSION
I. The Scope of Constitutional Protection
A. The History of Art. 18, § 6

We interpret constitutional provisions by examining the text and, where necessary, history in an attempt to determine the framers' intent. County of Apache v. Southwest Lumber Mills, Inc., 92 Ariz. 323, 327, 376 P.2d 854, 856 (1962). We have previously traced the history of art. 18, § 6 in the Constitutional Convention of 1910 and concluded that the clause is a "more specific and stronger" open court provision. Kenyon v. Hammer, 142 Ariz. 69, 74, 79-81 n. 9, 688 P.2d 961, 966, 971-73 n. 9 (1984); see also Barrio v. San Manuel Division Hospital, Magma Copper, 143 Ariz. 101, 105, 692 P.2d 280, 284 (1984). 4

Thirty-seven states have "open court" or "certain remedy" provisions. Note, Constitutional Guarantees of a Certain Remedy, 49 IOWA L.REV. 1202 (1964). 5 The provision is of ancient origins, having its roots in the Magna Carta and having been given more modern currency in Sir Edward Coke's comments on the Magna Carta in his "Second Institute." Id. at 1203. 6

As we stated in Kenyon and Barrio, art. 18, § 6 is an "open court" guarantee intended to constitutionalize...

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