Bukky v. Painesville Tel. & Lake Geauga Printing Co.

• Decision Date: 10 November 1981
• Docket Number: No. 80-1596,80-1596
• Citation: 68 Ohio St.2d 45,428 N.E.2d 405,22 O.O.3d 183
• Parties: , 22 O.O.3d 183, 7 Media L. Rep. 2309 BUKKY, Appellee, v. The PAINESVILLE TELEGRAPH & LAKE GEAUGA PRINTING COMPANY et al., Appellants.
• Court: Ohio Supreme Court

Page 45

68 Ohio St.2d 45

428 N.E.2d 405, 22 O.O.3d 183, 7 Media L. Rep. 2309

BUKKY, Appellee, v.The PAINESVILLE TELEGRAPH & LAKE GEAUGA PRINTING COMPANY et al., Appellants.

No. 80-1596.

Supreme Court of Ohio.

Nov. 10, 1981.

Syllabus by the Court

In order to withstand defendant's motion for summary judgment in a libel action brought by a public official, the plaintiff must produce evidence sufficient to raise a genuine issue of material fact from which a reasonable jury could find actual malice with convincing clarity.

Plaintiff-appellee, Gary B. Bukky, a Madison Township Trustee, filed a libel action against defendant-appellant, The Painesville Telegraph & Lake Geauga Printing Company, for statements made in a newspaper article which appeared in the Painesville Telegraph on November 11, 1975.

Earlier in 1975, Vernon E. Henry, editor of the Painesville Telegraph, received a telephone call from an individual pertaining to alleged irregularities in the governmental operation of Madison Township in Lake County.He assigned Barbara Silver(now Martin) to determine whether there was adequate material available to publish an item about Madison Township government.He instructed her to start by contacting the Madison Township Clerk.

Plaintiff contended in his brief in opposition to defendant's motion for summary judgment that only three items in the November 11th article were defamatory: first, the overpayment to the Harry Bukky Trucking Inc., a company operated by plaintiff's brother; second, the purchase of lumber from Newcomb Lumber Inc., by plaintiff, billed in the name of the township to avoid payment of sales tax; and third, the payment of per-diem wages to plaintiff as a trustee when plaintiff was campaigning for nomination as county commissioner.¹The article stated that plaintiff had publicly promised not to collect trustee wages while so campaigning.

The former reporter, Martin, in her affidavit supporting defendant's motion for summary judgment, and in her deposition, in substance stated that the defamatory publication occurred only after a reasonable investigation was undertaken to determine the truth, and that she believed the information published was true, and reasonably believed it was true at the time of publication.The record indicates that Martin reviewed township records and interviewed many persons before the publication on November 11, 1975.

With reference to the first item, the alleged overpayment to Harry Bukky Trucking, no awareness of the falsity of such statements can be inferred when any reliance is placed on the testimony of the township clerk, Patricia Kristoff(now Northcutt).Although plaintiff contends a further investigation would have revealed that there had been no overpayment, the record failed to demonstrate how this constitutes publication with knowledge of its falsity or with reckless disregard of the truth.

With reference to the second item, the lumber purchase from Newcomb Lumber, the transaction occurred with no payment of sales tax.This item as published was the truth.Plaintiff averred in support of his contention only that he did not cause the sale to be tax free.

On appeal, plaintiff abandoned any argument that the third item, namely, that plaintiff publicly stated he would receive no per-diem wages as trustee while campaigning for county commissioner, was actionable.Even if this third item were still an issue, the record reveals that there is documentary evidence that another newspaper, the Madison Press, on May 2, 1974, published an item containing plaintiff's public statement prior to the defendant publishing same.

The trial court granted summary judgment for the defendants.On appeal, the Court of Appeals in a split decision reversed and remanded for further proceedings.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Thrasher, Dinsmore & Dolan, David M. Ondrey and Dale H. Markowitz, Chardon, for appellee.

Gallagher, Sharp, Fulton, Norman & Mollison, John B. Robertson and Beverly A. Harris, Cleveland, for appellants.

CLIFFORD F. BROWN, Justice.

The issue herein is the quantum of evidence that a public official as plaintiff in a libel action must produce in order to withstand defendant's motion for summary judgment.

The standard in this area of the law has been articulated by the United States Supreme Court in New York Times Co. v. Sullivan, (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686;St. Amant v. Thompson(1968), 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262; and by this court in Dupler v. Mansfield Journal(1980), 64 Ohio St.2d 116, 413 N.E.2d 1187, paragraph two of the syllabus, as follows:

"In considering defendant's motion for summary judgment in a libel action brought by a public official, if the court finds that there is no genuine issue of material fact from which a reasonable jury could find actual malice with convincing clarity, it must enter judgment for defendant."

The rationale for this standard is supported by Gertz v. Robert Welsh, Inc.(1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789;Rosenbloom v. Metromedia Inc.(1971), 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296;Greenbelt Cooperative Publishing Assn., Inc. v. Bresler(1970), 398 U.S. 6, 10, 90 S.Ct. 1537, 1540, 26 L.Ed.2d 6;Beckly Newspapers Corp. v. Hanks(1967), 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248;Garrison v. Louisiana(1964), 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125;Washington Post Co. v. Keough(C.A.D.C.1966), 365 F.2d 965, 968;Driscoll v. Block(1965), 3 Ohio App.2d 351, 210 N.E.2d 899;Nader v. de Toledano(C.A.D.C.1979), 408 A.2d 31.

Measured by the foregoing standard as established by authoritative legal precedent, and adhering thereto, we find that this case raises no genuine issue of material fact based on evidence from which a reasonable jury could find actual malice with convincing clarity.

Accordingly, the judgment of the Court of Appeals is reversed.

Judgment reversed.

WILLIAM B. BROWN, SWEENEY, LOCHER and KRUPANSKY, JJ., concur.

FRANK D. CELEBREZZE, C. J., and HOLMES, J., dissent.

FRANK D. CELEBREZZE, Chief Justice, dissenting.

With one judicial body blow, the court, today, effectively eliminates, as a practical remedy, the ability of any public official or public figure to prosecute a successful defamation action.Since I believe that we should balance our concern for an uninhibited, vigorous free press with a genuine awareness of a defamation plaintiff's legitimate interest in redressing wrongful injury, I respectfully dissent.

Controlling First Amendment case law in the defamation area is clear.As a public official, plaintiff, in order to recover damages for published falsehoods relating to his official conduct, must prove that the statements were 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 Co. v. Sullivan(1964), 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686.See, also, Dupler v. Mansfield Journal(1980), 64 Ohio St.2d 116, 413 N.E.2d 1187, certiorari denied(1981), --- U.S. ----, 101 S.Ct. 3111, 69 L.Ed.2d 973.

The New York Times standard was further refined in St. Amant v. Thompson(1968), 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, in which the court precluded recovery by a public-figure plaintiff unless there was sufficient evidence to permit the conclusion that "the defendant in fact entertains serious doubts as to the truth of his publication."

Herbert v. Lando(1979), 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115, established that there is no First Amendment privilege that bars inquiry into the editorial processes of a defamation defendant, thus permitting evidentiary entry into a reporter's or editor's subjective state of mind.Now, a plaintiff may probe the beliefs, opinions intent and conclusions entertained by a reporter in preparing a story in order to prove the subjective libel standard articulated by the court in St. Amant v. Thompson, supra.

Applying the aforementioned constitutional principles to the case at bar, I submit that the granting of summary judgment in defendants' favor was legally unwarranted for two fundamental reasons.

First, recent precedent of the United States Supreme Court has sounded a note of caution with respect to granting summary judgment in First Amendment libel cases.Where a reporter's or editor's "state of mind" or "subjective awareness of probable falsity," motive or intent is the focal point of the case, the court has expressed some doubt as to the propriety of rendering summary judgment.In Hutchinson v. Proxmire(1979), 443 U.S. 111, 120, at fn. 9, 99 S.Ct. 2675, 2680, at fn. 9, 61 L.Ed.2d 411, for example, Chief Justice Burger, in discussing the New York Times "actual malice rule" within the context of what a defamation plaintiff had to prove in order to avoid summary judgment, stated: "Considering the nuances of the issues raised here, we are constrained to express some doubt about the so-called 'rule'.The proof of 'actual malice' calls a defendant's state of mind into question, New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686(1964), and does not readily lend itself to summary disposition. * * * "See, also, Herbert v. Lando, supra;Poller v. Columbia Broadcasting System(1962), 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458(state of mind should generally be a jury issue).

Second, assuming arguendo that summary judgment can be properly employed in libel cases, the incompleteness, ambiguity and uncertainty of the depositions and affidavits in the case at bar render summary judgment inappropriate by Civ.R. 56 standards.

As stated in Dupler v. Mansfield Journal, supra, 64 Ohio St.2d at 121, 413 N.E.2d 1187, the test for evaluating a motion for summary judgment is: "In ruling on such a motion, the court is limited to examining the evidence 'taking all permissible...