Burgess v. Reformer Pub. Corp.

• Citation: 146 Vt. 612,508 A.2d 1359
• Decision Date: 28 February 1986
• Docket Number: No. 84-059,84-059
• Court: United States State Supreme Court of Vermont
• Parties: , 12 Media L. Rep. 1856 John S. BURGESS v. REFORMER PUBLISHING CORPORATION & George Carvill.

Page 1359

508 A.2d 1359

146 Vt. 612, 12 Media L. Rep. 1856

John S. BURGESS v. REFORMER PUBLISHING CORPORATION & George Carvill.

No. 84-059.

Supreme Court of Vermont.

Feb. 28, 1986.

Edwin H. Amidon, Jr., Herbert Ogden, Jr., and Amy S. FitzGerald of counsel, of Langrock, Sperry, Parker & Wool, Burlington, for plaintiff-appellant.

LuAnn Van Zeeland, of Dinse, Erdmann & Clapp, Burlington, for defendants-appellees.

Before HILL, PECK and HAYES, JJ., and BARNEY, C.J. (Ret.), and KEYSER, J. (Ret.), Specially Assigned.

HILL, Justice.

Plaintiff-appellant, John S. Burgess, appeals an order of the superior court granting summary judgment on plaintiff's libel action in favor of defendants-appellees, Reformer Publishing Corporation and reporter George Carvill. We believe that the trial court erred in ruling, as a matter of law, that plaintiff was a "public official" at the time of the alleged libel. We also believe that the trial court erroneously concluded that the publication could not support a defamation action and therefore reverse.

In March, 1979, the Brattleboro Reformer printed an article concerning a grand jury investigation of an alleged embezzlement of federal funds by the former president of the then-defunct Mark Hopkins College. The headline read: "Grand Jury Probes Embezzlement--Mark Hopkins: Burgess Denies Getting Funds."

When this article was published plaintiff was the Town Agent for the Town of Brattleboro. He claims that he was damaged in his reputation by defendants' knowingly false and libelous innuendo that he was the subject of a grand jury investigation and guilty of criminal wrongdoing ¹ and that he suffered loss of income and mental and physical injury.

Defendants moved for summary judgment pursuant to V.R.C.P. 56 alleging, inter alia, that plaintiff "was at all times material not only a public official but a public figure." In support of this assertion, defendants cited only plaintiff's answers to defendants' requests to admit which outlined plaintiff's political and professional career in Vermont, including his association with Mark Hopkins College. The trial court determined that, as Town Agent, plaintiff was a public official. It further concluded that the materials presented did not raise an issue of actual malice on the part of either defendant. Accordingly, it granted defendants' motion for summary judgment.

I

In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), the United States Supreme Court ruled that the constitutional guarantee of free speech "prohibits a public official 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." This standard was subsequently extended to defamatory criticism of "public figures," Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967), and in Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974), the term "public figure" was further clarified:

That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive 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.

Defendants concede that plaintiff was not a public official for purposes of this suit as the allegedly libelous publication did not criticize or pertain to plaintiff's official conduct as Town Agent. See Sullivan, supra, 376 U.S. at 283, 84 S.Ct. at 727 ("Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct.") (emphasis added). They contend, however, that the trial court's ruling should be affirmed because plaintiff is either an all-purpose public figure or a public figure insofar as his involvement with the grand jury's embezzlement investigation is concerned.

To become a public figure "for all purposes and in all contexts," a person must achieve "pervasive fame or notoriety." Burns v. Times Argus Association, Inc. 139 Vt. 381, 384, 430 A.2d 773, 775 (1981) (quoting Gertz, supra, 418 U.S. at 351, 94 S.Ct. at 3012)). The test is a stringent one. "Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life." Gertz, supra, 418 U.S. at 351, 94 S.Ct. at 3013; see also Wolston v. Readers Digest Association, Inc., 443 U.S. 157, 165, 99 S.Ct. 2701, 2706, 61 L.Ed.2d 450 (1979) (petitioner did not occupy position of pervasive power and influence such that "he could be deemed one of that small group of individuals who are public figures for all purposes."); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1292 (D.C.Cir.1980) ("a person can be a general public figure only if he is a 'celebrity'--his name a 'household word'--whose ideas and actions the public in fact follows with great interest.'').

We recognize that nationwide fame may not be required. See Waldbaum, supra, 627 F.2d at 1296 n. 22 (question is whether the individual is known to a large percentage of the well-informed citizenry in the community or region where he was defamed). Nevertheless, we do not believe that the defendants here sustained their burden of demonstrating that plaintiff had achieved the necessary degree of notoriety to be considered an all-purpose public figure. The only evidence proffered on this issue was plaintiff's responses to defendants' requests to admit. Although plaintiff admitted to holding certain political and professional positions that arguably exposed him to public scrutiny, those admissions in and of themselves do not establish fame and notoriety. A question of material fact was left unresolved--namely, whether plaintiff was a household name in the community. Consequently, although defendants may ultimately prevail on this issue, the trial judge's decision to grant them summary judgment cannot be upheld on the record here. See V.R.C.P. 56(c) (judgment shall be rendered on motion only if there is no genuine issue as to any material fact and party is entitled to judgment as a matter of law).

Defendants contend that even if plaintiff is not an all-purpose public figure, he is a public figure insofar as his involvement with Mark Hopkins College, his appearance before the grand jury, and his discussions with the press are concerned.

Persons who "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved" clearly become public figures for a limited range of issues surrounding such controversy. Gertz, supra, 418 U.S. at 345, 94 S.Ct. at 3009. This analysis requires courts to make a two-step inquiry: first, they must isolate what is alleged to be the public controversy. ² Waldbaum, supra, 627 F.2d at 1296. Second, courts must focus on the " 'nature and extent of an individual's participation in the particular controversy giving rise to the defamation.' " Id. (quoting Gertz, supra, 418 U.S. at 352, 94 S.Ct. at 3013).

Defendants assert that a person must simply be "drawn into ... a public controversy" to become a public figure insofar as that controversy is concerned. See Gertz, supra, 184 U.S. at 351, 94 S.Ct. at 3012. We cannot agree. Courts have consistently emphasized that persons must " 'thrust themselves to the forefront' " of a public controversy or assume a place of " 'special prominence' " in the resolution of public questions to be held to have relinquished their interest in the protection of their own name. See Waldbaum, supra, 627 F.2d at 1297 (quoting Gertz, supra, 418 U.S. at 345, 351, 94 S.Ct. at 3019, 3012). ³

In Burns, supra, 139 Vt. at 386, 430 A.2d at 775, for instance, the plaintiff openly and voluntarily participated in her husband's political campaign for the Democratic nomination for governor and thereby became a public figure for her activities in that regard. On the other hand, in Time, Inc. v. Firestone, 424 U.S. 448, 455, 96 S.Ct. 958, 965, 47 L.Ed.2d 154 (1976), the United States Supreme Court held that, despite holding press conferences on the matter, the wife of one of America's wealthier industrialists did not become a public figure for purpose of her highly publicized divorce. The Court reasoned that the majority of litigants are

drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom.

Id. at 457, 96 S.Ct. at 966.

In Wolston, supra, 443 U.S. at 166, 99 S.Ct. at 2706, this reasoning was found to be equally persuasive where a potential defamation plaintiff failed to respond to a grand jury subpoena and was subsequently cited for contempt. Although these incidents attracted a considerable amount of media attention, the Court emphasized that the plaintiff did not voluntarily thrust or inject himself into the controversy at hand; he did not discuss the matter with the press and he "limited his involvement to that necessary to defend himself against the contempt charge." Id. at 166-67, 99 S.Ct. at 2706-07.

The parallels are obvious. The plaintiff in this case was subpoenaed to appear before a grand jury investigating an alleged embezzlement of federal funds by the president of Mark Hopkins College. As trustee and treasurer of the...